Our firm has the philosophy that every family is unique, and so is every divorce. However, in every divorce the goals are the same: to end the marriage as quickly and as cost-effectively as possible, to protect your children from the negative impact divorce can have, and to ensure that property and support are settled in a fair manner.
Types of Divorces
There are really only two types of divorces, uncontested divorces and contested divorces. However, it is important to note that calling a divorce “uncontested” is not exactly accurate. Every divorce has disagreements and a divorce is truly not uncontested until everything is settled. It may be more accurate to look at divorce from the perspective of a divorce that is litigated in court, or a litigation divorce versus a divorce that is settled in some other way such as between the parties, in mediation, etc., or a negotiation divorce.
When the parties cannot reach an agreement or there are significant issues that require the attention of a court to resolve, a divorce in court is the only option.
A divorce is initiated in court when one of the spouses files a Complaint which is a lawsuit that requests the Court grant a divorce to the filing party. That spouse is then the Plaintiff. The other spouse then usually files an Answer to the Complaint which admits and/or denies the facts alleged in the Complaint. That spouse is then called the Defendant. Most of the time the Defendant also files a Counterclaim against the Plaintiff which is like a Complaint in that it is also a lawsuit asking for a divorce. Generally, it does not matter who is the Plaintiff and the Defendant in a divorce, but there are times when that may matter, and our firm can help explain that to you further. It is also important to note that not every divorce proceeds exactly as the above, and our firm can help you understand what other litigation tools are available to you in your divorce.
A divorce begins when one or both of the spouses in a marriage decide they want to separate permanently. Once that begins one or both of the parties hire attorneys and proceed with negotiating a resolution to their divorce. Proceeding with a divorce without an attorney is risky and it is important you at least talk to an attorney about your case before proceeding on your own.
Our firm usually begins divorces outside of court with a letter to the opposing party letting them know that we are representing their spouse and requesting disclosure of income, assets and debts. Most of the time this disclosure happens but sometimes it does not. If it does not happen, the only option is to pursue a divorce through litigation.
However, if both spouses do the right thing and give full information on the marital estate, our firm then prepares a contract called a “Marital Settlement Agreement.” Some lawyers call it a Property Settlement Agreement or Separation Agreement. This agreement has terms that settle everything about the parties’ marriage and, if signed, is a final settlement of all issues short of getting an actual divorce. Our firm can further help you understand the particulars of the agreement and what you should or should not include in the terms.
Once an agreement is signed, to get a divorce requires you wait one year from the date you separated if you have minor children and six months if you do not have minor children. Once that waiting period is up, one of the spouses files an uncontested complaint for divorce and the parties cooperate to finalize the divorce. Usually, the spouse who did not file the complaint signs a waiver to let the filing spouse finish the divorce. The spouse who filed the complaint and a witness both do an affidavit and submit that to the court along with a final order of divorce and a state form called the VS-4 form. The average out of court divorce takes about 30-60 days at most after the one-year or six-month period has expired. Our firm can not only help you with a Marital Settlement Agreement but also with finalizing your divorce for you.
Grounds for Divorce
The most common fault grounds are adultery, desertion (abandonment) and cruelty (physical and/or mental abuse). Divorces can also proceed on what is sometimes called “no-fault” which is really a grounds for divorce based on the parties having been separated for one year. Our firm has extensive experience in all types of divorces and can help you decide which if any grounds for divorce you should use in your lawsuit.
Litigating Temporary Issues during a Divorce
One of the most important parts of a divorce in court is what happens while the one-year period is pending. There is a process called a “pendente lite hearing” where the Court decides the several issues including temporary custody and visitation, spousal support, child support and payment of marital expenses. The Court may also freeze assets, award attorneys’ fees and deal with health insurance. Many times these issues are agreed upon even though a divorce is in active litigation. Procedures for these temporary issues are different depending on the County or City you are in so it is important you discuss these issues with your lawyer.
Every litigation divorce usually includes the use of discovery. Discovery is a tool each side must gather information about the other parties’ assets, debts, position on the issues and evidence at trial. Discovery includes the asking of questions under oath of the other party called “Interrogatories” and document requests called “Requests for Production of Documents”. Some parties also use “Requests for Admissions” which are statements the other party seeks to have you admit or deny and depositions which are discovery proceedings where you are asked questions in-person on the record. Discovery is a very time-consuming and expensive process, and our firm has worked very hard to come up with a system to minimize the headache and expense of discovery.
Settlement and/or Trial
Parties usually set a date for a trial soon after the filing of the Complaint for divorce. Generally, a litigation divorce can take at least a year before a trial will occur. A trial in a divorce case proceeds just like any other litigation but without the use of a jury. Trials are very complex, and a competent and experienced lawyer is essential to getting the best outcome possible. While your lawyer can never predict, much less guarantee an outcome, experienced lawyers can give clients a range of outcomes to help you plan for the trial and its aftermath. Sometimes the best option is not going to trial, and your lawyer should be there to give you the best advice in this regard as well.
At any point during the litigation process the parties can, and often do settle their divorce by executing a Marital Settlement Agreement. The divorce then proceeds just like a negotiation divorce. Statistically speaking, most divorces end in settlement even if they are litigated.
After your divorce is final, there are two possible proceedings that can occur. The first is modification proceedings. Modification proceedings are lawsuits that seek to modify specific issues such as custody, visitation, spousal support and/or child support. Generally speaking the assets and debts allocated in a divorce cannot be modified once the divorce is final.
The second proceeding that can occur after a divorce is enforcement proceedings. These occur when one party is in violation of the final order of divorce or Marital Settlement Agreement and the aggrieved former spouse has to enforce the order or the agreement.
Both modification and enforcement proceedings proceed the same as divorce litigation, however they are generally shorter and less complex than the original divorce.
Pre and Post-Marital Agreements
Oftentimes long and expensive divorce litigation could have been avoided if the parties had engaged in family law planning prior to or soon after their marriage. We have extensive experience in issues related to marital property and support. This gives our attorneys the ability to assist our clients in drafting agreements and to save the parties some of the stress and financial hardship of litigation in the event the marriage ends in divorce.
Our attorneys also know that sometimes a spouse may not necessarily want to get divorced but may need some assistance in obtaining protection in the event a divorce situation is thrust upon them. Our team will often recommend individuals enter into interim support agreements that protect a spouse during a trial separation or other periods of uncertainty when such individuals just are not ready to pursue a full and final divorce.
We recognize that there are instances where unmarried couples will share not only their residences but also ownership of property. As such, our attorneys offer services to such couples for drafting agreements that will govern any eventual termination of an unmarried but committed relationship between two parties.