Stages of Divorce Proceedings
By Beverly Bird
The prospect of dealing with a divorce is traumatic enough. When you don't know what to expect from the process, it adds to the stress considerably. Listening to friends' renditions of what they went through usually isn't helpful, because few divorces are exactly alike. Uncontested divorces can be final in a matter of months in most states, while contested divorces usually go through several adversarial stages.
Pleadings are official documents filed with the court, and no divorce can begin without at least one. The first is the petition or complaint filed by the spouse who is initiating the divorce. That spouse then serves the petition or complaint on the other spouse, often by having a sheriff's officer or private process server hand-deliver the papers. The receiving spouse has a period of time -- usually about a month -- to respond by filing an answer, or an answer and counterclaim, with the court.
The mortgage needs to be paid while the divorce is pending, and visitation schedules are often necessary early in the proceedings. One spouse or the other usually files a motion with the court, asking the judge to make temporary orders to address these issues. A judge can order child support, temporary custody or payment of household bills while the divorce is ongoing. In some states, such as Texas and Massachusetts, automatic temporary orders go into effect as soon as one spouse files for divorce. These orders usually only prevent either spouse from selling or giving away marital assets, but they can address visitation as well.
When spouses contest custody, most state courts will establish a temporary parenting plan and order the parents to attend mediation to try to come up with a more permanent post-divorce plan. This usually happens relatively early on in the proceedings, because until parenting is resolved, the children can be in limbo and lose contact with one parent when parents have a hostile relationship. If mediation fails, a judge might order a custody evaluation, and some states will appoint a guardian ad litem for the children -- an attorney who represents the children's interests in the litigation and who may make recommendations for custody to the court.
Fact-finding takes place during the middle stages of most contested divorces, as spouses or their attorneys begin to prepare for the possibility of trial if settlement isn't possible. Discovery involves the exchange of facts and documents, usually relating to financial issues. Methods include interrogatories -- a written list of questions each spouse must answer under oath -- or demands for paperwork, such as statements for bank accounts, retirement funds, investment funds or even just monthly bills to establish each spouse's budget. Lawyers will sometimes depose spouses, asking them questions under oath. The questions are similar to those included in interrogatories, but are usually more in-depth and extensive.
Settlement or Trial
The last stage of the contested divorce process is an attempt at settlement. After discovery is completed and lawyers know what they're dealing with, spouses and their attorneys might meet to try to negotiate a resolution of such issues as custody, support and property division. In some states, negotiation is mandatory. It might include pretrial hearings or conferences. The majority of couples settle during this phase. Those who don't must proceed to trial, where a judge will decide issues for them, based on testimony and the documents produced through discovery.
Beverly Bird has been writing professionally since 1983. She is the author of several novels including the bestselling "Comes the Rain" and "With Every Breath." Bird also has extensive experience as a paralegal, primarily in the areas of divorce and family law, bankruptcy and estate law. She covers many legal topics in her articles.