Because going through a divorce is emotionally trying and confusing, family law attorney Arnold Goldstein gives a brief overview of how a divorce is likely to progress.
The initial process of a divorce begins when one party, either the husband of wife, files a complaint stating that he is filing for divorce and cites the reason for why the marriage is ending (usually it is cited as irreconcilable differences). Following the receipt of this document, the other spouse files what is legally referred to as a response and appearance, says Goldstein. This basically serves as an indication that he understands that the marriage is coming to an end.
Once you both have hired attorneys to represent your best interests in the case, a few details should always be addressed, Goldstein advises. If you need a temporary custody arrangement, a restraining order, or temporary alimony, then you should get these awarded as soon as possible. Most importantly, he says, you should make sure that the children’s well-being is taken care of before you proceed.
Next, you will need to file an affidavit, particularly if you are going to request alimony as part of your divorce agreement. An affidavit, Goldstein explains, outlines your income, expenses, debt and liability and must be accompanied by tax returns as proof of your earnings and deductions.
In a simple case, he says, you would then begin with your negotiations. This is when both parties, and their respective lawyers, meet to discuss how everything will be divided. This is a crucial stage, Goldstein advises, and you need to make sure that you have hired a lawyer who fully understands how everything should be broken down. For instance, he continues, real estate law and taxes will play a major part in how much money you actually receive from your divorce. For instance, if you close a 401k and you think that it’s fair to split the earnings down the middle, you have to remember that the government is going to take their own share of the money as well. It’s also key that you keep in mind that along with assets, investments, and property, you will also be dividing all of the marital debt that had acquired during the union as well.
If you cannot settle the negotiations, then you must proceed with a more formal divorce hearing, Goldstein explains. At this time, both parties enter the discovery stage of the trial. Here, both lawyers present written questions that will be asked of the opposing spouse, documents that will be presented during the case, experts that will be interviewed, and witnesses that will called upon as well. During the discovery stage of the trial, depositions will be taken from both parties, which is where you’ll be asked questions by either lawyer in front of a court reporter to help lawyers develop their cases.
Following the discovery stage, both parties will have the opportunity to file motions before a judge. When a motion is filed, you are basically asking that information or evidence be excluded from the case. If the motion is granted, then the evidence must be removed. If it is denied, then your spouse’s lawyer can present the evidence as originally planned.
The length of time that has passed to reach this point will vary greatly depending on how much needs to be negotiated. For example, if you have no real assets, then it won’t be as many days and weeks as it will take for a couple who jointly owns a multi-million dollar business to go through negotiations. However, the next stage of a formal divorce case is a pretrial where each party explains their side of the story to the judge, including why they feel the child should be placed with a particular parent, why alimony should paid, etc. During this time, the court will begin to narrow down the facts, what witnesses you will bring to trial, and what experts are expected to testify. Each lawyer may call his own experts to the stand to disprove the opposing spouse’s claims and to try to present the opposing spouse in a way that he will seem unstable or unfit to have primary custody of the children. Additionally, if the court feels that the best interests of the children are not being completely considered, a third party lawyer may be hired to represent the children in the case.
Finally, your trial will be scheduled. Typically, says Goldstein, the date of your divorce trial will be about three to four months from the time of your pretrial appearance (when you first met with judge to explain your case). Depending on how many experts and witnesses you have scheduled to appear, and how much is still left to be negotiated, the actual divorce trial will take three days and is decided only by a judge as there are no juries in divorce cases, he explains.
Because the entire process can be quite lengthy, and since so much needs to be decided and agreed upon, it’s crucial that you have the proper representation from day one.
This article is for informational purposes only. You should not rely on this article as a legal opinion on any specific facts or circumstances, and you should not act upon this information without seeking professional counsel. Publication of this article and your receipt of this article does not create an attorney-client relationship.
