The First Step: Complaint
The first step in the divorce process is for one spouse or the other to file a "Complaint" for divorce (often called a petition for divorce). This is the "pleading" or official legal document that is filed in the courthouse that begins the divorce. The person who files for divorce first is Plaintiff; alternatively, the other spouse will be the Defendant. The complaint is required by statute (law) to disclose certain statistical information such as the date and place of your marriage, if any children were born during the marriage, etc. Along with the complaint, a summons will be filed as will a Notice of Mandatory Injunction. Those three items, once filed, must be served upon the other party so that he or she has notice that the proceedings have begun. There are certain requirements for service of process that, if not met, can result in the divorce not being granted. Generally, a Sheriff's Deputy or a private process server will serve the Complaint and Summons on the other party. On occasion, parties come pick the documents up from our office and the law allows them to sign a Waiver of Service of Process, acknowledging receipt of the lawsuit. This can also be done via mail.
Once the other spouse is served with the complaint, he or she has thirty (30) days to file an "Answer" which is that spouse's official response to the complaint for divorce. The answer will generally admit or deny the allegations set forth in the complaint and many times the other spouse will file a "Counter-complaint," which is a counter-suit that is basically the same as the original complaint except that the allegations are made against the Plaintiff.
Fault and the Complaint for Divorce
Generally, litigants in divorces allege in their complaint's both fault based grounds and "irreconcilable differences," a no fault ground. The fault based ground is usually "inappropriate marital conduct" which is designed to be a catch all provision for various types of behavior. Other fault based grounds include adultery, etc. It is important to remember that just because a complaint contains the allegation of inappropriate marital conduct or another fault based ground, it does not necessarily mean that fault will become a central issue in the case or that the granting of a divorce will be contested. Also note that there are legal reasons for including certain allegations and requests for relief from the Court which may or may not have a likelihood of success. For example, a parent who files for divorce may not actually be seeking custody of a child or child support from the other spouse but may request in the Complaint for Divorce that a child support payment be paid by the other parent. In almost all Complaints and Counter-complaints, attorneys include requests that the Court order every possible relief even if the requested relief is not realistic. This is done to protect the litigants because you cannot obtain relief from the court that you do not "plead" or ask for in the complaint or counter-complaint, therefore attorneys include all possible requests as a matter of standard practice.
A temporary injunction is generally issued automatically in each divorce case. This injunction is designed to maintain the status quo. It generally prevents the sale or transfer of certain assets, prevents the dissipation of marital funds and enjoins the parties from threatening physical harm against the other and from harassing each other. The injunction is effective against both parties at the same time. It is important to make sure you understand the terms of the injunction if one has been issued in your case because if the injunction is violated, the person violating the court order can be incarcerated for contempt of court.
If the parties do not immediately begin settlement negotiations, the next phase of the divorce lawsuit is called discovery. Discovery is the process by which attorneys and the parties obtain the necessary information and facts about the case including a complete picture of the parties debts and assets. Both parties may file Interrogatories, which are written questions which must be answered under oath, and Requests for Production of Documents, which requires the other party to provide certain documents listed within the request such as tax returns, bank statements, credit card statements, etc. The answers and documents must be produced within 30 days but often it takes longer than 30 days to gather the information.
The discovery process can be burdensome and very frustrating. Often times, discovery requests ask for bank statements, tax returns, etc. going back several years. The documents can be difficult to obtain and the process can be lengthy and expensive. The extent of discovery usually depends on the size and make-up of the marital estate. For example, if one of the parties owns a business which has many employees and produces significant income, the other spouse will most likely hire an expert to determine its value.
In some divorces, attorneys and the parties agree to "informal discovery." This can reduce costs significantly and generally consists of each attorney requesting certain documents from the other spouse (i.e. current brokerage statements, etc.) Many times attorneys advise against informal discovery because the documents and information produced by an opposing party are not produced under oath. When a party answers discovery under oath, that means that the person is representing to the court that the information is the truth and therefore subjects himself/herself to the criminal penalty of perjury. If one spouse lies or omits assets under oath during the discovery process, the other spouse may be able to use that lie or omission to reopen the divorce and go after a portion or all of the assets that were not revealed.
Depositions are another common form of discovery. Depositions allow your attorney to evaluate your spouse as a witness and how he or she will likely react in a courtroom if the matter proceeds to trial. Depositions provide an attorney the opportunity to ask your spouse nearly any question they want to ask. The deposition process can be expensive because in addition to attorney's fees, there are court reporter's fees for attendance and transcription of the deposition. Attorneys often spend a great deal of time preparing for a deposition and the deposition itself may take several hours. Depositions may take place early in the case or late in the process. It depends on a variety of circumstances. For example, in some cases, depositions are taken of both spouses, fact witnesses, experts, etc.
See "children" and "child support" links for more information.
In a divorce, the court must evaluate several factors in making decisions regarding children. The court's primary consideration is what is in the "best interests of the child." One parent must be designated the Primary Residential Parent (custodial parent) and the other parent will be the Alternate Residential Parent. To settle all issues related to the children, the parties much agree on a Permanent Parenting Plan. That Plan designates a Primary Residential Parent and provides for the number of days each parent will spend with the child. It also sets forth a default schedule for the children and sets forth the child support obligation. Many items are included in the Parenting Plan including decision making, life insurance, health insurance for the children, etc.
If you have children and are going through a divorce, the court will require you to attend a parenting class which is supposed to be taken by both parents as soon as possible after the filing of the divorce complaint. This class provides insight for divorcing parents in how they can assist their children through the divorce process.
A Divorce is a negotiation.
In its simplest form, a divorce is a negotiation from start to finish. The process by which a divorce reaches a negotiated settlement varies from case to case. In a divorce without children, the parties must agree and sign a Marital Dissolution Agreement, which is the document that divides the parties' debts and assets, provides for alimony, if any, attorney's fees, etc. This document is the formal settlement agreement. If the parties have children under the age of 18 (minor children), the parties must agree upon both a Marital Dissolution Agreement and a Permanent Parenting Plan to settle the divorce. Learn more on our Children Services Page.
Many divorces are settled in mediation. The mediation process is very beneficial in family law cases because it allows parties to reach creative settlements that are less likely to occur at trial. Mediation is an informal settlement process by which the parties and their attorneys meet with a neutral third party attorney who has been trained in mediation. That mediator's job is to work with the parties to facilitate a settlement. The mediator does not have final decision making authority like a judge but their expertise and training is very beneficial in helping settle their divorces. Mediation is generally required in family law matters prior to setting the case for trial.
A large percentage of cases which are mediated either settle during the mediation process or before trial. Mediation will save the parties a significant amount of attorney's fees if the case settles.
If the parties cannot reach an agreement in mediation or otherwise, there is no choice but to have a trial. A trial should always be a last resort. In addition to the outcome being uncertain, trials are both expensive and unpleasant. We often tell clients two people will benefit if the case proceeds to trial: both attorneys. Sometimes there is no choice but to go to trial due to a spouse's refusal to cooperate or agree to a reasonable settlement. However, we work as hard as we can to negotiate favorable settlements for our clients so they can avoid a trial.