Divorce Process

The divorce process can be a daunting undertaking. From the beginning of the marriage and prenuptial agreements, to contemplating divorce and even after divorce, if there are appeals, a spouse may feel very overwhelmed in this process. Going through modifications for custody, child and spousal support and the task of post-judgment litigation; even the most organized person can feel overwhelmed.

Understanding the Process:
  • Overview of the Divorce Legal System: Even though the relationship between you and your spouse has changed and you may no longer be living together, until you are legally divorced, you are still married.
  • Contested vs. Uncontested Divorce: There are two kinds of divorces - contested and uncontested. A contested divorce is one in which the parties cannot agree, either about getting divorced or about the terms of the divorce, such as the division of assets, allocation of debts, alimony, child support, or the custody of children.
  • Trial Preparation and Discovery for Divorce: In a contested case, after one spouse files for divorce, the often torturous, and tedious process of discovery begins. Each side sends the other lengthy lists of questions called interrogatories, which have been drafted by the lawyers and which must be answered under oath.
  • Expert Witnesses in Divorce Cases: Part of preparing for trial is locating expert witnesses. An expert witness is someone who is allowed to express a professional opinion at the trial.
  • Divorce Hearings and Trial: Once the discovery process is complete, each lawyer will use legal precedent to construct an argument about what his or her client is entitled to. Then a trial will take place, during which the lawyers will present the judge, master, referee, or other person hearing the case with information favorable to their argument.
  • Appealing a Divorce Case: After the trial, if you, your spouse, or both of you are not happy with the result, either or both of you may appeal. The purpose of an appeal is to determine whether the trial judge made a legal error such as misinterpreting the law or allowing into evidence testimony that should not have been admitted.
  • Divorce Mediation and Marriage Counseling: In some jurisdictions, before the trial preparation or discovery process can even begin, the law requires that both parties participate in counseling or attempt to resolve their differences with a trained mediator.
  • Family Court Masters or Magistrates: In many jurisdictions, in addition to the trial and the alternative dispute mechanisms described above, there is another layer of the judicial system known as masters or magistrates. These people are "junior judges" whose job it is to hear the evidence and make "proposed findings," or recommendations, to a judge.
  • Judicial Indifference in Divorce: Omnipresent in the arena of divorce and custody is the notion that it takes two people to have an argument and that at any time one person can stop the conflict by giving the other person what he or she wants. Many times, judges allow themselves to be seduced by this simplistic concept.
  • Divorce Settlement: Once the litigation has begun, most spouses begin to figure out that if they could reach agreement, they would save themselves a great deal of money and aggravation. They understand, on some level, that they should settle the case instead of fighting it out in court.
  • The Divorce Settlement Conference: A divorce settlement conference is a meeting where the spouses and attorneys work on the terms and conditions of property division, alimony, child support, and custody and visitation. They negotiate and find compromises on these issues because through compromise and negotiation the parties attempt to avoid a trial.
  • Dismissing a Divorce Case: Sometimes couples planning to divorce reconcile after filing the action but before the court moves on it. The couple can, if they agree, cancel the divorce by asking the court to dismiss the divorce after the papers have been filed.

Grounds for Divorce:
  • Annulments: Although it is not as common as it once was, a marriage annulment states that a marriage never existed. Whereas divorce is the end of a marriage, an annulment decrees that, for various reasons, the union was not a legal marriage due to a defect in the legal marital contract.
  • The Reason for the Divorce: Grounds are the legal reasons for requesting a divorce. When one spouse initiates a divorce by filing a complaint or petition, he or she must state the reason for the divorce. The reason or reasons are the grounds, and the parties -- the spouses -- present that reason to the court.
  • Fault versus No-fault Grounds: California took the lead in 1970 with the first modern no-fault divorce law, and within the decade almost every state followed suit. Today every state offers no-fault as an option. However, 33 states still have fault grounds for divorce.
  • Liberalization of Divorce: Liberalization of divorce did not make it less painful to get a divorce. Emotionally for most people divorce is a wrenching experience, one right up there with the death of a spouse or a serious illness or accident in terms of pain and suffering.
  • Adultery and Divorce: Adultery is one of the oldest grounds for divorce because adultery was considered the worst possible violation of marriage vows and proof of a marital breakdown.
  • Cruelty and Divorce: Another popular fault ground was cruelty, both mental and physical. Often the cruelty was mental, which is a catchall term that often meant that one spouse verbally and psychologically abused the other.
  • Abandonment and Desertion in Divorce: When one spouse just up and leaves the marriage, the other may have a fault ground for divorce, abandonment, which is also known as desertion, a term with very unfavorable connotation.
  • Imprisonment and Divorce: Confinement in prison is fault grounds for divorce, but the particulars of the imprisonment can matter.
  • Alcoholism and Drugs in Divorce: Habitual drunkenness is a fault ground in some jurisdictions, and usually a defendant must be a habitual drunk for a period of one year.
  • Insanity and Divorce: Insanity is a fault ground for divorce. Most states with fault grounds consider incurable insanity to be adequate fault for a divorce.
  • Fault Grounds Reconsidered: All fault grounds are ways the legal system through its courts comes to terms with a failed marriage, and this means that the law must reach inside a very intimate human relationship.
  • Historic Defenses to Divorce: Under traditional fault grounds, one spouse could defeat the claims of fault by the other spouse by raising certain defenses.
  • No-fault Divorce: No-fault means that no one is alleging that anyone has done anything wrong in the marriage, but rather that the couple desire to terminate their marriage.

Pro Se Divorce (filing for divorce without a lawyer):

  • Doing Your Own Divorce - Pro Se: A divorce in which each spouse represents himself or herself in filing documents and/or appearing in court without a lawyer is a pro se divorce. Pro se means "for yourself."
  • When to Do a Pro Se Divorce: Filing pro se works when the action is uncontested, a proceeding in which there are no disputes.
  • What Are the Advantages and Disadvantages of a Pro Se Divorce: The most obvious advantage of a pro se divorce is cost. When couples file pro se, either by using divorce kits or online divorce solutions, they save money.
  • Can I Really Do a Pro Se Divorce Online?: The popularity of pro se filing has increased with the coming of the information age and online divorce.
  • Pro Se Divorce Kits: Pro se filers can also purchase state-specific divorce kits. The kits often come in boxes or in book format with blank forms required in divorce.
  • When Does Filing a Pro Se Divorce Not Work?: No one should attempt a pro se filing in an adversarial divorce, one where each spouse is unable to come to any agreement.
  • Do I Need a Lawyer to File a Pro Se Divorce?: Many pro se filers do the filing part of the divorce, but nevertheless ask an attorney to review the paperwork.
  • Pro Se Divorce Popularity: The increasing popularity of pro se divorce probably reflects society's changing perception of marriage and divorce.
  • Pro Se Divorce and the Courts: The clerk of the court is a public official who is responsible for keeping court records and procedures in order. His or her office handles filings, issue writs of garnishment, and answer questions about court procedure.
  • Filing a Pro Se Divorce: Filing an uncontested divorce pro se means that one of the parties does work normally done by a lawyer -- the filing of divorce papers.
  • Pro Se Divorce Documents: Each jurisdiction has its own divorce forms and forms and affidavits may have different names in different jurisdictions.

Divorce Filing Process by State

Service of Process
Process Service by State

Prenuptial Agreements:

  • Prenuptial Agreements: A prenuptial agreement spells out the terms and conditions for the division of the marital or community estate and spousal support.
  • The Uniform Premarital Agreement: All jurisdictions now permit prenuptial agreements. Since 1983, at least 27 states have enacted versions of the Uniform Premarital Agreement Act.
  • Romance and a Prenuptial Agreement: The Prenuptial Agreement is just something that has to be considered, even if it is unpleasant.
  • Prenups are Not Just for the Wealthy: Many people are under the mistaken impression that only wealthy people need prenuptial agreements.
  • Consider a Prenup Before Saying I Do: A prenuptial agreement can be used for anyone who has property, debt, a degree, a certificate or license, an established career, a business or professional practice, a creative product, expectations of inheritance or other receipt of assets, past matrimonial experience, or children.
  • Prenuptial Agreements Set Out a Financial Inventory: Some lawyers advise prenuptial agreements in the case of second (or third) marriages between older spouses who have children to whom they wish to leave an estate.
  • A Warning About the Prenuptial Agreement: While some dimensions of marriage are off limits (child support, for example), care must be taken in the execution of a prenuptial agreement.
  • Upholding the Prenuptial Agreement: To be upheld, an agreement must be substantively and procedurally fair at the time of execution.

Support & Custody Modifications:

Post-Judgment Divorce Litigation:

Useful Online Tools
  • Divorce Online - With this online software you will complete and instantly print your divorce forms and step-by-step filing procedures to file your own divorce in a timely, professional, and hassle free fashion.
  • Online Separation Agreements - When you and your spouse agree about how to resolve your issues, 3StepAgreementTM puts you in charge and gets everything in writing.
  • Divorce Negotiation Online - You will be surprised how easy it is to resolve your disputes through our innovative Divorce Negotiation CenterTM. It's FREE. Give it a try.

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