Stages of Divorce Litigation
People who are beginning divorce proceedings have a lot on their minds. In addition to mourning the loss of a relationship, there can be a lot of anxiety associated with the uncertainty of the process. It helps to understand that all divorces will follow a course. Through cooperation, some divorces will follow a direct path, while others can be more contentious making the process longer and stressful. How the parties navigate that map is entirely up to them.
Question: A husband and wife decide to their marriage is over and file for divorce. What is the first thing that takes place?
Lydia: A petition for divorce is filed by one spouse with the courts. The court will then issue a summons to the other spouse – the defendant in the case – requiring the defendant spouse to respond to the complaint. Through the petition and response, the spouses lay out their positions and version of the issues of the divorce.
Question: With the court papers filed, what happens next?
Lydia: Soon after divorcing spouses file the initial court papers to get the divorce process started, they will exchange information related to their respective economic, financial, and personal situations – including the extent of their property ownership, debt, and income. This is called the discovery phase.
By examining the information exchanged during discovery, a divorcing couple, their attorneys, and the court can begin to decide how to fairly divide up property and how to deal with divorce-related issues such as child support and spousal support.
The degree of discovery that is necessary in a divorce case often depends upon the extent to which the parties have assets and debts, and the accessibility of proof of the existence of those assets and debts. For example, if there is a family business involved, discovery can be more complicated.
Question: In a previous Legal Briefs discussion, we’ve talked about mediation and how helpful that can be in the divorce process. Is mediation required?
Lydia: In our judicial circuit, mediation is required in divorce cases as part of the negotiation stage. Mediation is a great process for people to use in divorce. It is particularly effective in divorce when parties have children and will have contact with each other for years to come. It is a much better way to solve differences. Another advantage to mediation is it is a relaxed environment and not as intense as a courtroom with a judge.
During mediation, the parties use the information gathered in discovery to present their position to the other side and try to reach a mutually acceptable resolution – a marital settlement agreement – concerning the terms of their divorce. If you are successful, this agreement will spelled out in your final divorce papers.
Question: When does a divorce case go to court?
Lydia: Cases only go to court when every option has been explored and the parties require the resources of the court – either a judge or jury trial. The two parties argue their case in court and leave it to the judge or jury to resolve everything in a dispute.
In most situations, the major points of the case are resolved before trial but the court is needed to resolve an aspect of the case such as child support or visitation.
Question: Generally speaking, how long does a divorce case take?
Lydia: We get asked that a lot by clients. They want to know, from start to finish, how long it will take to get divorced. It is impossible to answer because the length of time varies significantly depending upon the subjective circumstances of each case.
We’ve had complicated cases that have made the divorce proceedings longer than the marriage. And we’ve had less complicated cases that took only a few months.
It comes down to how much you are willing to compromise and work with your spouse.
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