Divorces are one of the most common types of cases we handle in our practice. Many people are confused or intimidated by the process. This post will walk you through the most common steps in your divorce proceedings and what to expect.
If your divorce is truly uncontested, that means that you and your spouse have come to an agreement that totally divides your property, deals with custody of children and visitation, any child support or alimony, etc.
In these cases it is as simple as letting us know what your agreement is, so that we can draft the agreement into a format the Court will accept. Then your spouse and you will sign the agreement and it can be filed with the Court. There is a 30 day cooling off period and then the Court will issue an order granting you a divorce. In most uncontested divorces, no court appearance is necessary for an uncontested divorce.
In a contested divorce things have the potential to get far more complex. A contested divorce is begun with the filing of a complaint for divorce, if you did not file you will be served with this complaint. Clients often wonder about why we have not included all the particulars of what they want in the complaint but the truth is a complaint for divorce is a very cookie-cutter type of document used to get the divorce started.
When the divorce is filed the court will issue a Pre-trial Status Quo Order. This order is also a form that the Judge issues in every case. The Courts strive for things to remain as close to normal as possible while the divorce is pending. This means you cannot sell the house, empty your bank accounts, or stop paying bills just because you are getting a divorce. If you do you may find yourself held in contempt.
Contemporaneously, or soon after the divorce is filed, other motions for temporary issues can be filed as well. These so-called Pendente Lite motions deal with what happens to the home, child custody and other such matters while the case is pending. If there is abuse or drug use alleged by either party these matters can ensure the safety of you and your children while the divorce is pending. If one party paid for everything and the other party stayed home taking care of the children, the court may order child support to be paid during the pendency of the divorce action. There may also be a Guardian ad Litem appointed; this person functions as your children’s attorney and makes recommendations to the Court based on your children’s best interests.
Discovery is also likely to be filed by both parties if they both have attorneys. Discovery questions may seem invasive, but rest assured that we are asking your spouse the same sort of invasive questions. The point of discovery is to find out information that will help you have the best outcome at trial or the best possible settlement. There are time limits to when both sides have to respond to discovery so it is vital that you stay in touch with us during this process. Failure to comply with discovery may result in you paying your spouse’s attorney’s fees or even not being allowed to present any evidence on your own behalf.
Along the way the Court may also set your case for case management dockets and/or disposition dockets. These hearings are just to let the Court know at what stage the case is, and whether it is ready for trial. These are not court dates that you have to appear at and can usually be handled by a motion.
Once discovery is complete, then mediation or settlement becomes an option–in fact mediation may even be ordered by the Court. We will always advise against settlement before discovery is done because at that point we will not know what would be a good settlement outcome for your particular case. Mediation is always a good option to pursue when the parties are interested in settlement. A good mediator can help steer settlement negotiations and can communicate with both parties and their attorneys without the potential adversarial nature that the parties or their attorneys may have. Finally if you and your spouse are able to reach a mutually agreeable settlement, it eliminates the risk that is inherent in giving your case to a judge.
If all this fails, then the final step is trial. Divorce trials do not have a jury, you try your case directly to the judge. We can help present evidence and argue to the judge about any issues that concern you. While our attorneys are all very experienced at trying a case to a judge, there is always a level of unpredictability when trying a case as the judge is making the decisions not you. This means that you may or may not get everything you want, or you may win on one point and lose on another. For example, you may get primary custody of the children, but not receive any alimony. It is critical that you meet with your attorney prior to trial to go over what they expect to be able to prove based on the evidence you’ve given us. It is also critical that you are honest and up front about anything your spouse may use against you. Your attorney is only as good as the information provided to them, and they need to be able to prepare defenses to anything that your spouse may allege.