Divorce Procedure - An Overview
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A divorce is either contested or uncontested. The process for each is basically the same, although more drawn out in a contested divorce case. There are a few procedural things that will happen in any divorce.

You or your spouse will file the divorce documents with the court. In some states, you are allowed to file a joint petition.

 

You will serve your spouse with the divorce papers. Whoever serves the documents will then provide proof of service to the court, or your spouse can sign a waiver of service which says he or she has seen the divorce petition but doesn't need to be formally served. The summons is usually not required if you file a joint petition for divorce.

 

Your spouse can file a response, agreeing to everything in the divorce petition or, if the case is contested, arguing certain claims.

At this point lawyers might become involved if it is a contested divorce. Lawyers will perform discovery. This means possibly subpoenaing your spouse for bank statements, tax returns, and other financial records; interviewing your friends, co-workers, possibly even your children and their coaches, teachers, and child care providers. In adversarial litigation, each spouse's attorney will try to use anything negative about the opposing spouse as a negotiating chip. There will probably be custody evaluations and your children may have to talk to a psychologist. The reasons for the divorce will most likely come up. Everything about your past - all your dirty laundry - will be dug up and possibly used against you.

This is why most people try to settle the case before it reaches trial. Not only is a big legal battle very costly - legal bills could easily run into the tens of thousands - but it's also very emotionally draining. However, even if you don't agree with your spouse on every aspect of your divorce, that doesn't mean you have to enter into battle. If you do use a lawyer, you can still try to retain control. Try to find someone who you feel comfortable with, and don't pick a warrior unless you want a war - and everything that comes with it. You can also try mediation, with or without a lawyer. In this case, a trained third party will sit between the two of you and help you reach your own marital settlement.

Regardless of what method you use, there might be some issues you can't seem to reach agreement on. Talking through lawyers might be okay if you feel intimidated by your spouse, but if you have children, you and your spouse will often have to communicate after your divorce, so learning to do this now will put you and your kids at an advantage. Here are some tips on how to negotiate with your spouse.

 

If your case is still contested, the next step would be to go to trial. Sometimes you might have to wait up to a year or more for a trial date. When it does come, your attorney will have prepared you to testify and explained basically what will happen.

We would never recommend trying to represent yourself in a highly contested case. If you can't agree with your spouse, you put yourself entirely in the hands of the court, who has a lot of discretion on what they can do. The judge will hear the case and make decisions based on what the statutes require, and based on knowing you for only a couple of hours (seeing most likely the worst sides of each of you). Many people end up being disappointed with the judgment. Some people have it in their heads that they will awe the judge with stories of how terrible their spouse is, and how unfairly they were treated during the marriage. You might think the judge will look to punish your spouse, but rarely does this happen. A judge sees this type of thing on a regular basis, and what may seem unbelievable to you is commonplace to them. Even if you were treated horribly during the marriage, the judge is usually not interested in hearing you badmouth your spouse. In fact, fault is rarely considered and even when it is, there are often many other factors that will receive more consideration. A judge will hardly ever award everything to one spouse. Of course, this is something that would be best discussed between you and your attorney, if it has to come down to that. The factors in your case may be different.

 

Once an agreement is reached, the final divorce documents will be drawn up. You might incorporate a marital settlement agreement into your final divorce decree, depending upon the laws of your state. We can do this for you if you use our services.

 

Finally, the divorce papers are signed and filed. A hearing may or may not be required, depending on your case. When you receive a final copy of your divorce decree, your divorce is final.

 

After the divorce, you need to follow what your divorce settlement agreement says. You will need to transfer any deeds or property, refinance the house if necessary, close any joint accounts you agreed to doing, and pay your spousal and child support. If you change your name or address, you'll need to notify everyone who'll need the update - the DMV, creditors, your social security card (for a name change).

 

As you can see, contested divorces are much more complicated. An uncontested divorce will generally move through the court system much quicker than a contested case. About 90% of cases are settled without a trial. Some of those people may be able to negotiate a settlement right away - especially if you don't have many assets. In those cases, a paralegal service such as Help Yourself Divorce can be a good solution for you. You don't have to pay for an attorney's legal advice if you don't need it, and you know the papers will be prepared correctly. While you can prepare the papers yourself, many people find this even more frustrating than preparing your own tax return. Even if you can't agree right away, through limited use of attorney(s) and/or mediator(s), you may be able to come up with a settlement. We have more information about your negotiation options available.