Understanding The Divorce Process

    You have come to see an attorney because either you or your spouse is contemplating a divorce.  Here is some information about the process and what you might expect to learn from your meeting with your attorney.

How The Divorce Is Commenced

A divorce or dissolution of marriage, or a legal separation are both commenced with a summons and petition.  The party who commences the dissolution or legal separation may be known as the "Petitioner."  The other spouse may be known as the "Respondent."  If both parties file together they are known as "Co-Petitioners."

A Respondent must of course be advised that the Petitioner spouse is requesting a divorce or separation.  This means that the other must receive "notice."  Notice of this proceeding is given to the Respondent when the Respondent is either served by a process server or the Sheriff, or when the waiver is signed.  When you sign the "Waiver of Service" this means that you acknowledge that you have received the documents and nothing more.  It does not mean that you agree that you should be divorced.

There is a ninety day waiting period before the court can enter a divorce decree.  The ninety days starts to run from the time you have been served, or if you sign the waiver, from the date you sign the waiver and the Summons and Petition are filed.  All issues may be resolved within the ninety day period but if you and your spouse are unable to resolve issues then expect delays in obtaining the divorce beyond the ninety day period.

Many feel that asking your spouse to sign a "Waiver of Service" is a more amicable approach.  Sometime the shock of a process server handing papers to your spouse may not be appropriate.  This should be discussed with your attorney.

Once The Divorce Has Commenced

Once the divorce is commenced many tasks must be completed.  The first is that if you are the Respondent, you must answer the Petition.  The Petition is the document which outlines the requests your spouse is making.  Therefore you have an opportunity to respond to those requests.  Both the Petition and the Response require a filing fee paid to the court.  The next major task is known as "Disclosure."  There are rules that mandate that certain information be exchanged.  That includes the following: a completed Financial Statement, three years of income tax returns, three years of personal financial statements including all loan applications which you have completed, three years of business financial statements, real estate documents, current statements for all debts, current investment statements, documents outlining employment benefits, current retirement plan statements, current bank/financial institution account statements, income documentation including three months of paystubs, employment and education related child care documentation, insurance documentation and extraordinary children's expense documentation.

Once disclosure is completed your attorney may want to conduct "discovery."  Discovery is a means to discover information.  This may be done through written questions, oral requests (deposition), and other methods.  There are deadlines for discovery as well and in some cases the court must grant permission to conduct discovery.  If there are assets which must be valued, experts may need to be retained.  Examples of those would be a home, pension, collectibles, and other items of property upon which you and your spouse disagree as to value.

What Property Does The Court Divide?

The court divides what is known as "Marital Property."  Marital property is property acquired during the marriage, regardless of how it is titled.  The court cannot divide separate property that was either yours before the marriage which has remained titled separately, or that which you have received by gift, devise or bequest.  The increase in value of separate property however, is deemed marital.  The court will divide marital property in an "equitable" fashion.  This means the court will divide property in the manner it deems to be fair.  This is not always 50/50.  The court will divide property taking into account the marital debts.

What About Support?

Child support and maintenance are issues to be addressed.  Child support is governed by the "Child Support Guidelines" which provide a formula for its calculation.  There is a formula in regard to temporary maintenance for some people and this should be discussed with your attorney.  Maintenance is the support paid to a spouse who is unable through appropriate employment to be self supporting.  There are many factors which must be considered regarding maintenance, such as employability, earning capacity, the length of marriage, the standard of living established during the marriage, and others.

What About The Children? 

The court will enter orders regarding the children.  The law recently changed and rather than referring to "custody" of the children, the law now refers to "Allocation of Parental Responsibility."  Either one or both of the parents will be allocated parental decision making; this addresses the major decisions for the children.  Major decisions include issues such as those relating to education, religion, medical care and others. 

When Does The Court Decide These Issues?

The parties are always free to resolve all of these issues between themselves.  If the parties cannot resolve the issues, then the court will have to make a determination.  Generally speaking there are two stages to a divorce.  The first stage is when issues are resolved on a temporary basis.  The final stage is when you will be divorced.  On a temporary basis the court will determine, if you are unable to agree, use of assets, payment of debt and issues relating to children and support.  Permanent orders, or the time when you are finally divorced is the time when all these issues are permanently resolved if the parties have not worked out a resolution.

Mediation

Mediation, or alternative dispute resolution, is a forum designed to assist you in settlement of your case.  Mediation is conducted by an unbiased third party, who maybe an attorney, a trained mental health professional mediator, or other professional.  There are no restrictions as to what you can resolve in mediation.  Generally speaking, with some exceptions, mediation is required before you proceed to court.