actual divorce process is controlled by the participants.
Many people do not realize that not all divorces must
end in contested courtroom proceeding.
once you have embarked on a contested divorce process,
the types of proceedings from State to State are similar,
but not identical. You should consult with a lawyer in
your State about the specific process.
length of your case may depend on the state and county
that your case is filed in. It often depends on how crowded
the court docket may be and often may take a year or more.
If contested to trial.
are the following stages of the divorce process:
Before a divorce is filed, you must determine where the
matter will be heard. Different states have different
rules for bestowing jurisdiction. In many states, a party
must have lived in that state for 180 days prior to filing.
If there are two possible jurisdictions, it may benefit
the party filing to serve the Divorce documents first
to choose jurisdiction in their state. That is the primary
benefit of serving and filing first.. There is little
benefit to serving and filing first other than to prepare
in advance and to choose the jurisdiction.
The divorce process is usually commenced by serving on
the other party a Summons and Petition for Divorce or
Legal Separation. In some states, a divorce is also called
a Dissolution of Marriage. The only significant difference
between a divorce and a legal separation is that in a
legal separation, the marriage is not dissolve. All other
issues related to custody, parenting time, child support
and property may be resolved just like a divorce.
in most states must be complete by actually personally
serving the other party or a person who resides in their
home who is considered to be of suitable age and maturity,.
In most states, a party may not serve their own divorce
Summons is a generally document announcing that a divorce
or legal separation action is being commenced. In some
states, that document also indicates that from that point
forward neither party may dispose of marital assets, change
insurance coverage or modify any other significant holdings
except for the necessities of life.
Petition has two parts. The first part is a statement
of facts which sets out basic facts such as the identities
of the parties, whether they have children and what assets
they may hold. The second part of the Petition seeks relief
such as an award of custody, spousal maintenance or child
support and a division of assets and debts. The Petition
is often tailored to seek the maximum relief. It is a
positioning paper that will often seek as much relief
as the proponent could possibly seek.
AND COUNTER PETITION
The opposing party has thirty (30) days in most states
to submit an answer to the petition. The Answer is very
simply the opposing parties statement of facts and their
request for relief. Often the service of an Answer is
waived. This is often done to save the parties the cost
of an additional filing fee should the matter be settled.
However, if a waiver or extension is not granted by the
opposing party and an answer is not filed within thirty
(30) Days, the original party ay seek a default. A default
means that the original moving party may request the relief
requested in their petition without opposition. Late answers
are often accepted since Courts prefer determining cases
on their merits rather than by default.
A temporary hearing may also be called a Pendente Lite
Hearing. Such hearings may be scheduled by either party
by filing a Motion supported by an affidavit. Temporary/Pendente
Lite hearings are designed to resolve issues while the
divorce is pending such as who will have:
Temporary support and/or maintenance
Where the parties are going to reside pending the resolution
of the case
Protection from harassment and domestic violence
Injunctions against financial improprieties
Use of assets
Courts generally, have a great deal of latitude in resolving
these temporary issues. In most states, temporary hearings
should not affect the final outcome. However, from a practical
perspective, temporary hearings can be very important
since Courts often favor a policy of maintaining the status
orders may be changed if there is a substantial change
in circumstance during the pendency of the divorce to
make the change in the temporary order necessary. Issues
that often arise may be that the debt on an asset (such
as a mortgage) is not being paid requiring immediate actions
such as a change in occupancy of the homestead or a sale
of an asset before the divorce is final.
Many courts require the parties to attempt to mediate
their disputes before the matter is submitted to the Court.
One exception to this rule may be where domestic abuse
has occurred. Mediation may occur between the parties
of with attorneys present.
means that the parties visit with a qualified neutral
who will attempt to get them to resolve their differences.
In mediation, the neutral is not an advocate and sill
not provide legal advise.
discussions that occur in mediation are not admissible
in Court under the public policy consideration that favors
a free exchange of information between the parties to
help them resolve their differences.
Many states have adopted a policy that requires parents
to attend co-parenting classes where children are involved.
The goal is to teach parents how to minimize the impact
of children involve in a divorce. In most cases, the parents
need not attend together.
states also require that children of a certain age attend
a class to teach them the skills to deal with divorcing
parents. This is not embraced in all states and is primarily
found in Northern states.
Many states have a hearing that is called an advance case
review or early case resolution meeting or Case Management
Conference. In such a hearing, the parties meet with the
Judge assigned to the case or a referee to discuss the
issues, or what discovery may be necessary. This is the
parties first chance to resolve the case or portion of
Discovery refers to the "investigation" phase
of the divorce process. It is primarily dedicated to identifying
the contested issues, a determination of assets, income
and debt of the parties. This exchange of information
can be conducted informally with eth parties agreeing
to freely exchange the information or formally, through
the submission of formal documents that require answers
Interrogatories refer to a form of discovery where written
questions are submitted to the opposing party to a lawsuit.
These questions must be answered in writing under oath
or under penalty of perjury within a specified time (usually
30 days). Objections may be made to questions that are
overbroad or unlikely to lead to admissible evidence.
Most states limit the number of interrogatories that may
be asked without the court's permission to keep the questions
from being a means of oppression rather than a source
A request for production is another part of the discovery
process. Either party may send a request to an opposing
party or witness for relevant documents related to the
proceeding. You may wish to review our list of Documents
that may be relevant to your case. Generally, documents
requests require that the party served provide any and
all documents requested that they have in their possession
within a specified period of time (usually 30 days). If
you do not possess the documents requested, you do not
have to acquire them if it is not easy to do so. The opposing
counsel may acquire those documents through other remedies
such as subpoena or by having a party sign a Release of
Releases of Information
The opposing party may send a release of Information to
the other party seeking to acquire documents from a third
party that is relevant to the case. Ian example of documents
that may be requested include bank statements, medical
records, financial records, work schedules and income
Requests for Admissions
Either party may submit to the other a Request for Admission
seeking Admissions on certain facts relevant to the proceeding.
Much like interrogatories and document requests, the responses
must be returned within a specified period of time and
must be made under oath (notarized).
A deposition can be a more expensive form of discovery.
It allows a party to subpoena and depose any individuals
who may have information relevant to the case. This includes
parties and non-parties alike. In a deposition, the party
being deposed appears at the attorney’s office or
a neutral location to answer questions put by the other
side's attorney regarding the facts of the case. Depositions
are under oath with a court reporter present so that everything
that is said is recorded. A deposition is scheduled to
pin a witness down to certain facts and to discover all
possible documents and witnesses related to a case.
FAILURES PROVIDE DISCOVERY
The penalties related to a failure to respond to discovery
or to appear at a deposition may be severe. The opposing
party may file a Motion to Compel discovery and/or seek
sanctions related to that failure. Severe sanctions may
include establishing facts related to a case. That means
that the Court disallows an opposing party from presenting
an evidence or testimony at trial to contest an issue
where discovery was not provided. Default is the most
severe sanction where the Court allows a party to proceed
as if the entire case or any individual issue is uncontested.
The Court may also award attorney’s fees to the
party that submitted the unanswered discovery.
you require additional time to respond to discovery, you
should request the same in writing including a specific
timeline when it can be completed.
Experts are often employed to determine certain facts.
Those experts may be jointly agreed upon by the parties,
which can save on the cost of having individual experts
testify at trial. However, where that is not possible,
each side may hire an expert to contest an issue and require
their testimony at trial. Common experts include:
financial planners to determine future economic circumstances
business evaluators to value businesses
real estate appraisers to value real estate
personal property appraiser to value furnishings and other
assets (generally an auctioneer experienced in home goods)
vocational evaluator to determine earning capacity
psychologists to testify to mental health issues
A divorce or legal separation case may be resolved at
any time the parties come to an agreement on the issues.
In such cases, the parties would sign a Marital Settlement
Agreement or some other form of stipulation resolving
their issues. This can occur right up to the point of
Settlement or pretrial conferences are schedule by the
Court. In such conferences, the Court may require each
party to submit a pretrial statement of the case and issues.
In such hearings, the Judge will meet with the lawyers
and/or parties to discuss the issues and to make settlement
recommendations. This is a gentle form of arm twisting
Try to resolve outstanding issues; or
Set issues that will be contested at trial and may include
timelines for exchanging information, exhibits and witness
If you are unable to settle your case with your spouse,
it will go to trial. Some states have a trial by jury.
Other states have a trail to Judge. At trial you each
tell your story to the judge. It is told through your
testimony, the testimony of other witnesses, and documents
called exhibits. At trial, the moving party (usually called
the petitioner or plaintiff) presents their case first.
The call their witnesses who are subject to cross-examination
by the opposing party. When the plaintiff or petitioner
rests their case, the Respondent or Defendant presents
their own case with witnesses and evidence, each subject
to cross examination by the opposing party.
After a divorce, either party has a right to an appeal
if they disagree with the Judge’s ruling. The timelines
for appeal are severely limited. As a result, you should
consult with a lawyer in your state regarding those timelines.
Whether the issues in your divorce are settled by you
and your spouse or are decided by a judge, some things
in your judgment can be modified (changed) by a judge
after a hearing. Usually, child support, alimony, child
custody, and child visitation can be modified, but only
if one of you can show that there has been a change in
If you or your spouse disobeys an order that the court
makes in your divorce judgment, you may file a Motion
to compel compliance. Such motions are generally for contempt
and require the service of an Order to Show Cause and