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Divorce Truths - The Contested Divorce
Many things happen on the road to the courthouse. The longer a divorce goes on, the more it appears to take on a life of its own. Depending on the behavior of the parties, your entire family will be consumed by it. Although friends and relatives will proclaim they will not take sides, it is only a matter of time before they do. Even though they have advice for you on every issue, they will be reluctant to come to court and testify on your behalf. They will give you a lot of advice, but little support. No one likes to be physically involved in someone else's divorce.
You should be prepared that your spouse will do things you never thought they would. Worse yet, you will be surprised at how adept they are at doing it.
Once a divorce is filed, an emotional roller coaster overcomes most rational behavior. Some spouses use a divorce as a catharsis to vent frustrations for the entire length of the marriage. It is going to be a long divorce when the client begins with: "It all started 25 years ago". The sad fact is for some clients, it did start 25 years ago and their emotional turmoil will appear endless.
You are suing your spouse for a divorce or they are suing you. Sound serious?
Why Would My Spouse Not Agree?
It is hard to understand why people would want to be married to someone who does not want to be married to them. But, consider:
If reluctant spouses would just agree to the divorce and negotiate the final terms to a conclusion, it would be over. But this way, they didn't get their fight. Your punishment was cut short.
The most common reasons I have found for refusal to bargain are:
Here Comes the Sheriff
In most jurisdictions, the local law enforcement official serves the divorce petition upon the defendant. There is always great concern over the embarrassment of having a sheriff come to a place of employment or home to serve the "lawsuit". For some people, this is as bad as the divorce itself. If your spouse is the one filing for the divorce and your attorney knows it is going to be filed, your attorney may request the petition be sent to their office. However, a sheriff may show up at your door. Try not to be alarmed by this. The sheriff is only doing a job.
There are clients who request their spouse be served at work to embarrass them in front of their co-workers. It's these small things that enlighten you as to what type of divorce you are in for.
Who Should File First for the Divorce?
You should discuss with your attorney the advantages of filing first. I prefer to be the plaintiff because you are the first to give your testimony in court. If you ever sit in a courtroom and listen to a trial, you will hear how different the representations of each party are. I prefer to have the first opportunity to persuade. The Defendant presents their case at the conclusion of the Plaintiff's case. If your spouse is the Plaintiff and has testified well and given a good impression, you may be playing catch up. Other attorneys prefer to know what they are up against before they start their presentation of evidence. This is a choice that your attorney should make.
Countersue for Divorce
If you definitely want a divorce but your spouse is the one who has filed the complaint for the divorce, you should consider filing a counterclaim for divorce. If you don't counterclaim and your spouse dismisses the divorce, you may be out of Court. If you still want a divorce, you have to start the process over from the beginning. This will be a disadvantage if the divorce was going well for you.
Be Aware of False Claims of Violence
In highly contested cases, it is not unusual for spouses to immediately apply for Temporary Protective Orders and falsely allege acts of violence. It is relatively easy to do initially in most jurisdictions, and your spouse usually does not need an attorney to file one. While some Temporary Protective Orders are valid and necessary for the protection of parties (or children), others are used to gain an advantage. In some jurisdictions the divorce action is assigned to the same judge who heard the TPO. Although they are separate petitions, you can be sure the judge who will preside over the divorce will learn of the TPO at the first opportunity. If a TPO is filed against you, have your attorney defend it for you. Many frivolous applications for TPO's can be successfully dismissed.
TPO's are also used to remove a spouse from the marital house, or to obtain temporary custody or support. Some spouses may intentionally provoke their spouse, so they can go to court and testify as to their fear for their safety. Don't be caught by this trap. If your spouse's behavior becomes extreme, talk to your attorney about whether you should leave the residence and what measures you should follow to prevent additional problems if you do leave. Hopefully, your divorce will not deteriorate to this level.
Children's Selection of Custodial Parent
Most of the States allow children upon attaining a certain age to make an election as to the parent they want to live with. If your children are old enough under the law of your jurisdiction to make this election, ask your attorney to file these affidavits/elections early in the case before the opposing side realizes they should have filed them. There are parents who chose not to bring their children into the divorce, only to discover that their spouse filed the affidavits. Divorce can bring out the worst in parents.
Your attorney will not take children to court without first notifying the judge and determining the judge's protocol. Your attorney will not just show up in court with your children present, and neither should you.
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