When a marriage begins to break down, whether suddenly or over time, many considerations need to be addressed. On top of changing your private life, learning to take care of your children on your own, and moving and selling the marital home and property, the pair may need to navigate the court system for the first time to dissolve the marriage. Finding your way through a divorce can be challenging and difficult, but if you have an idea of the process and a plan in place, your divorce can go smoothly. This article will walk you through some basic consideration to help you prepare for a divorce and to set you up for a smooth transition into life after divorce.
Find a Lawyer:
Navigating the divorce process is not an easy task. Navigating it on your own is incredibly difficult. Even when both parties agree about how the situation should play out, there are many formalities required to move the process through the court and end with a finalized divorce decree that is effective and fair between the parties. This settlement or court order will likely be the controlling document for your life after divorce, so ensuring that the final order is what you and your former spouse need to live separately is essential. For these reasons, having a lawyer to advocate on your behalf is vital to ensuring your divorce works for you.
A lawyer is also helpful to define and evaluate your goals. They have the background and the experience to realistically assess your desires for the divorce and make suggestions for possible changes or compromises. An attorney will help you set realistic goals from the beginning so that the process is as enjoyable as a divorce can be. Find a lawyer with whom you are willing to work with and that you can afford throughout the process and then communicate your wishes to your attorney. This will ensure that your ideas and hopes are being accounted for as you move forward.
Understand Your Options:
Divorce often calls to mind scenes of messy court battles between former spouses to get every last cent out of each other or for custody of children. Litigation is often used in divorces because former spouses often have trouble coming to a resolution together. Litigation may be necessary if there are directly opposing viewpoints or power imbalances that will make collaborative divorces impractical. However, if former spouses can work together cordially and understand and support the other’s position, conciliative practices may be able to help the couple divorce without having to go through the entire court process. Having a basic understanding of these options will help you make an informed decision and choose the best process possible for your divorce.
- Litigation: Litigation is frequently used in divorce practices. This requires formal court proceedings with both spouses represented and presenting their case before a judge. Litigation can be incredibly expensive if the divorce is particularly high conflict, as both spouses will likely have trouble agreeing to a settlement offer. Attorneys will spend many billable hours preparing and negotiating. Both sides will often feel that they have a superior argument, and a judge will have to decide what the final outcome will be. Another consideration of litigation is that a lawyer will argue your case, but then move on, and you may have little say in the matter. However, if you feel that you and your former spouse will be unable to negotiate or settle, it will be best to prepare for litigation.
- Negotiation: In a negotiation, one party will submit a proposed divorce agreement to the other, and the agreement will be refined and sent back and forth until the parties can agree. This can also be expensive as well because lawyers are able to bill for every phone call and all mail to achieve the negotiated agreement. Attorneys are necessary for negotiation to ensure that the drafting party does not take advantage of the other party. Attorneys need to review any agreements before they are signed to ensure the agreement will actually accomplish what it intends.
- Mediation: Mediation works best when the parties can be in the same room and have equal bargaining power to create a space for the two parties and mediator to work out a settlement agreement. The mediation style can vary, but usually, a mediator will encourage the parties to come to an agreement on their own or with some help from a mediator. This process allows the parties to take control of their lives post-divorce. Any agreement formed in mediation will be recorded and will be enforceable if both parties agree.
- Collaborative Law Process: The collaborative process allows the parties to come together and problem-solve together, rather than approaching the situation in an adversarial way. This process allows the parties to be more creative than a court would allow, and the focus is on coming to a solution that everyone can agree to, rather than fighting over each thing. Similar to mediation, the agreement will be enforceable between the parties.
The Steps of a Divorce Case:
In a typical divorce case that proceeds through negotiation, mediation, and litigation, the case will pass through several steps before a final resolution is reached. Having an understanding of each step will allow you to plan and prep for divorce litigation if you choose this route.
- Filing a Divorce Petition: The first step in any divorce proceeding is for one party to file a divorce petition before the courts that establish that at least one party meets the state’s residency requirements and that there are grounds for divorce. Grounds for divorce vary by state, but every state allows a no-fault divorce to some degree, usually through irreconcilable differences.
- Temporary Orders: The court may grant any temporary order to provide for the parties during the litigation. This can include orders for child or spousal support and child custody.
- Service of the Petition: The petitioning spouse will serve the petition on the other spouse and the receiving spouse will submit an answer.
- Negotiation: The parties will try to agree outside of trial on each of the issues in the divorce. This will shorten or eliminate trial based on what the parties may agree to. Some courts will even require the parties to participate in mediation before proceeding to trial.
- Trial: Trial will proceed in typical fashion. The parties will put on evidence and the judge will decide for the case and give the parties a final judgment.
- Finalizing the Judgment: A judgment for divorce or order of dissolution will end the marriage legally and will often outline child custody, child and spousal support, and division of property.
Something else to consider is that your divorce will be a public record, so most things referenced in court will be recorded, and people may be able to access it in the courthouse. Identifying information will usually be stored separately, but any accusations of fault and all orders about visitation agreements and child support will be public. An attorney may be able to file a protective order if there is good cause to keep your case private, but in most cases, judges will not grant these requests. Therefore, it will be important to consider what you will want on record from your divorce proceedings.
After a couple of divorces, there are still issues that will need to be addressed. A couple may jointly agree to change the judgment, whether by oral agreement or by a signed contract altering the agreement. However, this will not be given effect if the court order is not altered. Should you and your former spouse choose to alter how you execute the agreement, the original agreement will still be enforceable by either spouse. Therefore, it is best to file for a modification on the order to fully enforce the change.
Whether you and your spouse are good terms or cannot be in the same room, the divorce process allows the flexibility you to choose the best process for you and your family through a difficult process. With the right lawyer, the right process, and a plan to achieve the best possible outcome, your divorce, while maybe not be enjoyable, will be as agreeable as it can be.