In the Beginning…
The divorce process officially begins with the filing of the Summons and Petition for Divorce in the county that you reside in. If you are the one that filed the petition, your spouse must be served with the pleadings for the legal separation or divorce. This can be accomplished in one of two ways:
- Through a process server
- Your spouse can make arrangements to receive and sign for the papers at his or her attorney’s office
If you are the one that was served with papers, it is your responsibility to answer the Petition for Divorce. In this response you will state how you feel about each of the claims that your spouse has made. You can also take this time to put fourth your own claim (counterclaim) for divorce; this is a separate document and must be filed with your response.
Temporary orders are optional and are used to set guidelines that will govern the finances or the children during the divorce process. If you or your spouse finds it necessary to petition the court, both an Affidavit for Temporary Order and an Order to Show Cause for Temporary Order must be filed with the Summons and Petition. If any of the parties disagree with the orders issued by the courts, he or she may request a review.
Negotiations, Discovery, and Financial Statement
Before the first hearing occurs, you will need to compile the following items:
- Wage statements for the past eight weeks
- Completed financial statement
- State and federal tax returns going back two years
If children are involved but, you and your spouse disagree on placement and custody, the court will refer both parties to family court counseling services in order to resolve these issues. If mediation fails, a custody study must be carried out; the availability of this option varies from county to county. The court must be petitioned for a Guardian ad Litem, or GAL, who will act on the child’s behalf. He or she will carry out an investigation that will determine the recommendations that will be made to the court. Your attorney will need financial information from both you and your spouse to verify marital assets and to create a complete marital asset list. After this list is compiled, your attorney will hold a meeting with both parties to discuss how the marital estate should be divided.
Pre-Trial and Trial
Approximately 4 months after the respondent was served with divorce papers, a pretrial hearing will be scheduled with the judge that is assigned to your case. If both parties are able to come to an amicable agreement on all issues and have already signed a marital settlement agreement, this date may also be considered as the final divorce hearing. If you and your spouse are still in the process of resolving any issues when the pretrial date rolls around, the hearing will be used for the attorneys to discuss the status of the case with the judge, schedule the date of trial, and to determine if a GAL will be needed.
Once you and your spouse agree upon property and debt division, as well as support or placement, if the case involves minor children or maintenance (also called spousal support), a final agreement form is put together and signed by both parties. This document is called the Marital Settlement Agreement. Both parties must sign this document to finalize the case without a court trial. If you are not able to agree upon all items, the court may send you to mediation to attempt to resolve the final disputes. Less than 3% of cases go to trial because of the alternative dispute resolution options available today. If your case does not settle, the court will expect each side to submit proposed orders and a stipulation on all items that they do agree upon, to reduce the issues the court must hear and decide at trial. Hiring an attorney for advice and direction is strongly advised at any point during the divorce process, and most certainly if the case is headed for a contested hearing or trial.
If your spouse refuses to follow any of the orders set by the judge during and after the divorce process, notify your attorney immediately. The court may hold the offending spouse “in contempt” and has the option to impose punishment.
Mediation or collaborative divorce are two non-court options that take the place of the traditional litigation process. Mediation involves the use of a neutral third-party specially trained attorney to assist parties in reaching agreements on property and child custody. In a collaborative divorce the parties are fully represented by attorneys, but both parties and their attorneys commit to reaching an agreement through four-way meetings rather than contested hearings.