Marital breakups are never easy. Understanding the process of filing for divorce can be the first step in resolving many of the legal, financial and parenting issues that arise when a marriage ends.
Some of the most contentious divorce issues include:
- Classification of property as either “marital” or “separate”
- Equitable division of marital assets and debts
- The amount and duration of alimony or “spousal support”
- Issues related to child custody, visitation and support
Starting the Divorce Process
Making the decision to end the marriage is the start of a process that can last from several months to several years. Every divorce has its own unique issues that must be resolved. While the two parties begin to negotiate the end of the marriage, many couples will use a temporary agreement to establish how bills or other expenses will be paid. In cases where the parties cannot reach a temporary agreement on their own, a judge may issue a temporary order outlining the handling of expenses. Temporary orders or agreements can also cover custody and visitation arrangements, child or spousal support, restraining orders (when there is a history of domestic violence), and how bank accounts or other property will be handled during this period.
Basic Divorce Procedures
To begin formal divorce proceedings, one of the spouses must file a complaint for divorce (sometimes called a petition or application) with the local family court. During the discovery phase, both parties to the divorce will collect relevant information to their claim including copies of any prenuptial agreements and financial data such as income tax returns, lists of assets and liabilities, insurance policies, credit card statements, wills or mortgage documents. Parties may file motions with the court to address issues that arise before the finalization of the divorce decree, including the need for custody changes, visitations schedules or support arrangements. In some cases, a judge will have a short hearing to determine the merits of the filed motion.
If a divorce is uncontested (both parties agreeing to the separation and division of assets), the proceedings can move rather quickly. With a contested divorce, a judge must decide the ultimate outcome with respect to the division of assets, custody arrangement and the resolution of other matters.
The last procedural step would be a trial if the parties cannot finalize an agreement. During the trial, each side would be given an opportunity to present evidence and ask questions of the opposing side. Through the use of both direct examination and cross examination, the relevant information is presented to the judge or jury who ultimately will decide the matter.
Alternative Dispute Resolution
In some cases, divorcing parties may decide to negotiate outside of litigation. With Alternative Dispute Resolution (ADR), parties work together with an arbitrator or mediator to resolve any outstanding issues.
The Divorce Decree
After a mandatory minimum waiting period, the final divorce decree can be entered. Generally, the waiting period is between six to twelve months. When the judge signs the divorce decree, the parties are legally divorced.