The Traditional Divorce
Let’s stop for a quick tutorial on the legal process of a divorce. What is involved? Now you get to use all those new vocabulary words we learned to better understand the process.
Legal action required – Because marriage is a legal relationship, a legal action must end it. There is only one way into a marriage, through application and compliance with those requirements of the jurisdiction in which the marriage occurred. If it was a legal marriage in the place where it occurred, it is legal worldwide. You can’t skip the divorce by thinking you got married in Jamaica or some other non- US country. Nice try….
We will not address common law marriages, because they are all but gone in our country. If you think you may be eligible for such a determination, see a lawyer right away.
There being only one way into a marriage, there are but two ways out: death or divorce. Killing your spouse is subject of another program (just kidding)
A legal action involves filing a lawsuit, commonly called a petition for dissolution. Different states have different names. They all mean the same thing. The petition gets filed with the county clerk, a filing fee is paid, a case number is assigned, and usually a judge or division is assigned.
The petition is not a book on everything your spouse did wrong during the marriage. The judicial system is not concerned with your opinion of your spouse. It is not to be used as an emotional weapon. The petition just identifies the issues to be addressed by the court. Examples include alimony, division of the assets and liabilities, children, child support, attorney fees, temporary use of the home, and similar issues. The purpose is to put the other side on notice of the claim. The petition rarely includes the specifics of each claim, such as how much alimony is being requested each month, but rather that it is being sought, and for how long. Claims can be dropped as the case progresses. However, due process requires that one cannot get something that has not been requested.
What are the grounds to get divorced? Nearly all states have adopted a “no fault” standard to end the marriage. This just means you need not prove why you want a divorce. If the marriage is “irretrievably broken,” or similar language depending on what state you live in, then the “grounds” have been met. It does not require both spouses to agree. Just one spouse confirming the marriage cannot be saved is enough.
The divorce lawsuit culminates in the Court issuing a FINAL JUDGMENT. This is the legal document that ends the marriage and returns both people to being single.
What happens between filing the petition and the judge issuing the Final Judgment is what we will talk about in this session. There are several variables, depending on the facts of each marriage. We will walk you through those variables together, and hunt for the right fit for your individual circumstances.
Service of process, Answer, and counterclaim – once the petition is filed and assigned a case number, a summons is issued. This is the document that directs your spouse to file a response to the petition. The petition and summons and many related papers, or “pleadings” are then hand delivered to your spouse by a licensed process server. This process is to make sure your spouse knows the case has been filed. Remember “due process” from high school or college? This is an example. No one can proceed with a lawsuit without the other guy knowing it’s happening.
Once the petition is “served,” or handed to the other spouse, there is a deadline when a response is required. The response to the petition is called an answer. The answer admits or denies the individual paragraphs of the petition. As an example, the petition will have a paragraph on the date of the marriage; another on the number of children; another on grounds, i.e. the marriage is irretrievably broken. Those are most likely going to be admitted as true. But if your spouse requests lifetime alimony after a 6-year marriage or wants to move to a different state with the children, those paragraphs will be denied.
It is common for the other spouse to file a counterclaim. This is identical in format to the petition and identifies the issues the responding spouse wants to request of the court.
If a counterclaim is filed, then the original petitioner must file an answer, admitting or denying the paragraphs, or allegations.
Discovery – this is the guts of the typical divorce. Full financial disclosure must be shared. All those financial secrets you thought you kept during the marriage come out with this process. Most folks don’t know the answers to the financial questions. That’s not because we are all stupid; it’s because these facts are not part of our everyday information. Most of the time-consuming part of a divorce is not fighting about facts but gathering those facts together. We will spend a whole module on this discovery stuff later. It’s a critical part of any divorce. Know now that discovery includes sharing and exchanging various documents, financial affidavits, written questions and answers called interrogatories, and depositions, where questions are asked of witnesses, or the parties, under oath.
Temporary Relief – Many States permit people to ask the court for help while the case is pending. This help can include who will live in the home, the schedule for time sharing with the children, who will pay which bills, alimony and child support, and contribution to attorney fees and experts. It is a hearing before a court officer, judge or magistrate. You put on evidence and call witnesses. The other side puts on evidence and calls witnesses. Then a decision is issued. It will stay in effect until the final judgment is entered.
Mediation – most courts will require the parties to attend mediation before asking the court to solve their problems. The hope is that people can solve their own family problems far better than a stranger (the judge), given the right structure and tools. This is a very successful tool to problem solving.
Trial – when there remains any unresolved issue, be it all or just one, the judge is there to break the logjam. Both sides present the evidence that supports their position on the issue still in dispute, and the judge decides.
Appeal – This is a lawsuit filed in a higher court, or “appeals court” that takes issues with the facts or conclusions of the trial judge. It can take as long to process as the underlying trial and can be as expensive.
Fortunately, not everyone has to go through this whole long process to get divorced. There are lots of good short cuts, and several tools available to avoid the need for trials and appeals. However, we must know the way to Grandma’s house first, before we can make the shortcut through the woods. We are ready to learn about the short cuts.