As I’m sure you’re finding out, the divorce process is difficult, whether you’re the one filing for divorce, or you’ve just been served with divorce papers.
Not only is it hard emotionally, but financially and spiritually as well.
The best way to reduce stress in any emotionally charged undertaking is to get educated about what to expect, whether it’s dealing with a new medical diagnosis, a child with a learning disability or a divorce.
When entering unknown territory, a road map is an absolute necessity. You need to know how to get from point A to point B and you need to know what to expect along the way.
This guide will provide you with directions that will take you from point A (married) to point B (divorced), and what you may encounter along the way.
Of course, this post can only touch the tip of the iceberg.
If you are interested in a more complete explanation, you might want to check out other posts in the same category in which we cover all aspects of the divorce process.
You’ll find guides about how the courts analyze child custody, how property and debts are split in a divorce, how the legal process works, how to approach a divorce mediation, and how to choose a lawyer and save money in the process!
The Original Petition for Divorce
After you and your spouse have made the decision to divorce – whether it was your decision or his doesn’t really matter – the first legal step you will take is filing a petition for divorce.
Depending on your state, this document may also be called a “Letter of Complaint”. If you’re the one doing the filing, you will be called the “petitioner” and your spouse the “respondent” or “defendant”.
The divorce petition or complaint will have to be “served” on the person to whom it is directed.
So, if you filed for divorce, the papers will be served on your husband, and if he files the petition the divorce papers will be served on you.
Each state has specific service requirements, so if you don’t have a lawyer, you need to find out how exactly your state requires that service be accomplished.
Service is not done to make either person feel bad, though people often take it that way.
It’s the court’s way of making sure that the person who did not file the petition/complaint gets a copy of the petition/complaint to know a legal suit has been initiated and they are a party.
Typically the defendant/respondent (the one who received the initial filing for divorce) has a certain amount of time to respond to it.
This usually means that the defendant/respondent hires an attorney, at least for a consultation.
The Discovery Process
The petition for divorce usually sets up the initial issues for the divorce such as alimony, child support, and so forth.
So you will get a good idea of how your soon-to-be-ex-spouse thinks about these matters, or he will get a good idea of what your expectations look like.
Then the negotiations begin, and part of that negotiation is collecting all of the evidence to support each person’s position about financial and child custody issues
The process by which this evidence is gathered from both parties to the divorce is called “Discovery” because you are discovering all of the relevant information so that a final divorce decree can be entered that divides the assets and debts equitably.
Most discovery will revolve around your finances; things like bank accounts, stock accounts, retirement accounts, and the debts you both incurred.
Discovery is sometimes also used to determine how each party participated in parenting in order to determine custody issues in your divorce.
The legal standard in most states is the “best interests of the children.” So discovery around child custody issues looks at what each party thinks is best for the kids.
Bear in mind this is a highly emotional topic for everyone. It’s never a good idea for a parent to talk with his or her children about this part of the process.
Discovery in most states is accomplished by the following tools
Often parties simply share information with each other without even hiring lawyers.
This informal exchange works best if both parties feel confident that they know the basics about the family finances and are just looking to update account balances and credit card statements.
Oftentimes lawyers will enter into an informal exchange of information as well.
One thing to remember if you informally exchange information is that it’s a good idea to have each party sign something under oath that he or she has disclosed every asset and debt.
Interrogatories are a series of written questions designed to gather information from the opposing party in your case.
These questions must be answered under oath and can be long and tedious to answer.
Often upon receiving interrogatories, the party who sent them will request a deposition to clarify and questions they have about the interrogatory answers.
In most states interrogatories have firm deadlines, and failure to answer can result in a court order compelling you to provide full answers.
If court action is required to gain answers to interrogatories, often the court will penalize the recalcitrant party by ordering that party to pay the other party’s attorney’s fees and even a fine.
Requests for Production
Requests for Production are questions that ask a party to produce something; usually some kind of document.
The most common request is for bank or retirement statements or other financial statements.
Not everyone wants to part with this information quickly, but it’s best to get it on the table if you don’t want to rack up attorneys’ fees arguing – or worse yet, a court order compelling you to comply.
During depositions, you or your ex-spouse will appear in front of the other’s attorney and the attorney will take sworn testimony.
At a deposition both lawyers will be present and most often both parties will also be there. Sometimes other witnesses are deposed.
Depositions are serious business because the testimony given is given under oath, and if one is not truthful, there can be serious consequences in court.
A good attorney will ask witnesses questions she knows the answers to.
Her goal is to get the witness to lie and then once in front of a judge she can make you look like a liar by showing the judge the document that shows that the witness’s testimony is inconsistent with the evidence.
This is called impeachment. The best advice to someone heading into the deposition is to keep your answers short and truthful and if you don’t know the answer or aren’t sure – say so.
Mediation is a process in which you hire a professional negotiator to help you settle your divorce. It is far faster and costs a lot less than taking your divorce to court.
One of the benefits of mediation is that all of your “dirty laundry” is not shared in open court. This protects you from having your children, friends and future employers read about your divorce in the public record.
During mediation, both parties and their attorneys meet to negotiate a settlement.
Most of the time the parties and their lawyers are in separate rooms and the mediator shuttles back and forth.
If there are no lawyers involved, mediators usually meet with the parties together around a table to hash out the issues.
This can happen in one meeting or several depending on how far apart the parties are on the undecided issues.
If the divorce is amicable and all of the divorce paperwork has been properly produced and file, this process can be quick, inexpensive, and helpful in bringing the divorce to a close.
If conflicts arise throughout your divorce and you and your spouse cannot agree on the issues in your case, you may have to go to divorce court.
Here, you’ll plead your case before a judge –which sounds great in theory until you realize that the judge will have a profound influence on your future (and the future of your children’s relationship with each parent).
Keep in mind that the judge only gets a very limited view of your family life and financial situation.
A judge’s decision will never be as nuanced and well thought out as a mediated settlement because a judge has such limited information about the family.
Going to court is also very expensive, and unbelievably stressful. It’s usually best to avoid court if you can.
Sometimes however, court is unavoidable . Couples who take their divorce cases to court are usually engaged in high-conflict divorces around unresolved alimony, property issues and /or custody issues.
If, after divorce court, you feel the ruling has been unfair, you cannot appeal the order unless the judge has incorrectly applied the law, and that doesn’t happen often.
You can see why people end up spending so much money getting divorced when they have major disagreements.
If you are heading into the divorce process, your best bet is to educate yourself as much as you can.
If you ever had a baby, you probably know how helpful the birth classes were to prepare you for labor and delivery.
Your divorce is a similar life transition and the more you know about the process, the less confusing and painful it will be.