Filing for divorce can be a difficult and emotional decision but once you have decided that it must be done, what should you expect? What are the first steps? How long does it take? How much does it cost? I will answer some of these common questions in this general guide on getting started.
Should I Talk to a Lawyer?
The first decision you need to make is whether or not you are going to be represented by an attorney. If you do not have any marital assets or debts and have no children, you might not need to have an attorney. If you do have children or marital assets such as a home or retirement accounts, such as 401-K, or pension accounts, then you really do need to at least have a consultation with an attorney. Once you have signed a settlement agreement it is generally too late to make any changes to it. People say to me all the time, “we did not want to get lawyers involved and make it more complicated than it needed to be”. Unfortunately those people are in my office because a month or two after they signed a settlement agreement they realized they made some sort of mistake. Most of the time that mistake could have been avoided by simply having an hour long confidential consultation with an attorney before they signed the settlement agreement.
Step One, Filing for Divorce
The first step is to file a Complaint for Divorce. The complaint is the legal pleading in which you ask the court, in very general terms, for what you would like to have. If you don’t ask for something in the complaint the Court will not be able to award it to you. In the complaint you will ask that your divorce be granted on a specific ground such as adultery or irreconcilable differences. You will ask the Court for a fair division of your marital assets and debts such as bank accounts, personal property, retirement accounts and debts such as credit cards and lines of credit. You will ask the court to grant custody and visitation of your children. Filing the Complaint for Divorce is the first step in the process and opens the case with the Court. The complaint must generally be filed in the state and county where the parties reside, if you are no longer living together and live in different counties or states, you will need to talk to a lawyer about where you must file.
Step Two, Service
The next step is service. Service is the process of officially notifying the other party that you have filed for divorce. Your spouse might already be aware that you have filed and you might have already given them a copy of the paperwork, but unless they have been served in the proper manner the Court will not be able to grant your divorce or issue orders. There are three basic ways service can be made: First, you can have them served by the Sheriff. The Sheriff generally charges around Fifty dollars to serve. Service by Sheriff is aggressive and gets the point across that you are serious and that the other party needs to take this seriously. Service by Sheriff is also very confrontational and is not always a good idea if you want to be amicable. A private process server can also be an option They generally cost more than a Sheriff but you you have more control over when and where the person is served. The most amicable method is to have your spouse sign an Acknowledgment.
Dealing with Immediate Issues, Standing Orders and Temporary Orders
When you file for divorce, in most counties, an automatic standing order goes into effect that states that neither party can dispose of any assets, cash or property of any nature without the permission of the other party or the Court. For example, once the divorce is filed neither party can cash out a retirement account or sell a car. The standing order also states that neither party can remove the children from the state without permission from the other parent or the Court. So the standing order does provide some basic rules but what if there are more complicated issues? What if the parties cannot agree who is going to live in the house during the divorce process or which parent is going to have the children during the divorce and most commonly, who is going to pay the bills during the divorce process? If the parties can agree, then all of those issues can be dealt with in a simple temporary agreement. If the parties cannot agree then the Court will hold a temporary hearing.
If we need additional information, we have up to six months after we file for divorce to gather that information through the discovery process. During this discovery period we can subpoena documents such as bank statements, credit card statements, emails, phone records and pretty much any document that is relevant to the issues in a divorce. We can also compel people to sit for depositions. For instance, if you think your spouse is having an affair, we can subpoena the person and take their deposition. During this period we also have the ability to send your spouse a list of questions called Interrogatories. They are required to answer these questions in writing and under oath.
The End, Settlement Agreements or Trial
Your divorce will end whenever we can agree on all issues of property division, child custody and child and spousal support. If we are unable to agree on all of these issues then the only alternative remaining is to have a trial. At trial we will present the Court with all of the evidence we have acquired during the discovery process and advocate for a positive outcome. At the end of the trial the Judge will decide how the assets and debts are to be divided and award child custody and child and spousal support.
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