Divorce Procedure

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The filing of the divorce papers is the first requirement in the divorce process. The states of the US require the parties to the divorce to meet the residency requirements of the State that has the sole jurisdiction over the divorce case. The time period for satisfying the residency status differs from state to state and before the filing of the papers it is necessary that the parties check their individual state laws to check and verify their status.

If the spouses are residents of different states there is a possibility to file in either state of both the spouses meet the residency requirements of the state. When the residency requirements are fulfilled and the jurisdiction has been decided the spouses require completing the divorce petition. The petition contains the names of the parties to the divorce including the names of their children, the property that is distributed, child custody and support and any other information that is relevant for the divorce proceedings. The next step that is involved is to choose a lawyer as the divorce filing procedure can be a complicated one. A legal professional will makes things easier and at the same time ensure that the spouses get the divorce decree without any hassles. The papers are prepared by the lawyer on behalf of the parties before they are filed in a competent court of law.

This is a very brief explanation of the divorce process. There is a lot of detail excluded from the explanation because all divorces can be very unique and carrying with them very different requirements, forms, procedures, length of times, etc.. So, please read this and understand that it is our attempt to educate you from a very broad perspective.

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Before getting a divorce you, or you and your spouse should decide that you absolutely want a divorce. Even though in the divorce process, everything is reversible, it is important that you realize that the road is sometimes very long and can be a difficult one to travel.

Often, but not always, the first step is the separation. Couples have the option of obtaining a legal separation in most states or just separating with a non-legal mutual understanding. A legal separation is recommended and will provide a court ordered separation agreement that will outline the rules of the separation.

For example; who gets what, what are the visitation arrangements, the amount of support that should be paid, the division of marital debt, etc.. A legal separation is never a substitute for divorce, it simply provides a court-ordered separation agreement to abide by until the Marital Settlement Agreement is put into place with the Final Divorce Decree.

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Step 1: Filing a Complaint or Summons

Most divorces begin with the filing of the Complaint for Divorce, Petition for Divorce, or Petition for Dissolution of Marriage, which ever terminology applies to your state. The filing of this form allows the court to recognize your intentions to divorce as well as making sure the other party (your spouse) is aware of the divorce. If your spouse has not agreed to file a Waiver of Service of Process, then he or she will need to be served a Summons stating the filling spouse’s intentions to obtain a divorce. Typically the Summons is served by the sheriff or a private process serving service. In most cases it does not matter who is filing for the divorce. Issues like the division of property, support obligations, custody arrangements are not affected. By completing the Complaint/Petition and filing it with the court you will be providing the necessary information to get the divorce process started.

The spouse that files the complaint or summons is referred to as the Plaintiff or in some states the Petitioner. The purpose of the complaint is to let the courts be aware of the request for divorce, but most important to make the Plaintiff’s spouse aware through legal documentation. Like any other complaint, it is the job of the sheriff’s office to deliver the papers. After receiving the complaint, the Defendant, or in some states the Respondent, will file an answer of agreement or disagreement. At this time separation starts and the Plaintiff will file Pretrial Orders or formal motions concerning living arrangements, finances, temporary custody and visitation.

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Basic information required for Complaint or Summons:

– Date and location in which marriage took place
– The residence of both spouses
– The names and birthdates of each child
– Reason for declaring a divorce
(must be grounds permitted in your state)
– A list of claims

Step 2: Pretrial Orders

Hopefully you and your spouse will be able to come to agreement on temporary arrangements. This will speed up the process, allowing you and your attorney to focus on information pertinent to the post-divorce arrangements. Either way, proper support for each claim must to be provided in the orders. This part of the process will allow the judge to approve or disapprove the arrangements filed, which will make the future clearer for both of you. The temporary arrangements by no means are set in stone and do not directly influence the decisions made once the divorce is settled.

This is also the time an ex partee order may be decided. This is only temporary but is viewed as essential for protection of one spouse until a permanent decision can be made.

The Complaint/Petition will establish the grounds for which the divorce is taking place and reference a copy of a Marital Settlement Agreement.

If the non-filing spouse agrees with what is detailed in the Marital Settlement Agreement, you file what is called an uncontested divorce. In mosts states the court requires the filing of an Appearance, Consent, and Waiver Form by the non-filing spouse. This form has several functions. It allows the non-filing spouse to acknowledge to the court that he or she understands that the Complaint/Petition has been filed (this is the step that eliminates the serving of divorce papers). It allows the non-filing spouse to acknowledge to the court that he or she meets the state requirements for the divorce and that he or she gives consent to have the Current Marital Settlement Agreement drafted into the Final Divorce Decree. The above may sound very simple. Most lawyers will say that no divorce is ever simple, but an uncontested divorce is by far a less complicated, less stressful and a less traumatic experience than a contested one.

The difficulty in divorce arises when one spouse does not want the divorce or does not feel as though he or she is being treated fairly in the Marital Settlement Agreement.

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Disputes that arise and continue unresolved will lead to a contested divorce.

Your lawyer will become your teammate in a negotiating game to settle the disputes. If your divorce gets to a point where one or more disputes simply can not be settled out of court, it will be time to go to the Family Court in your county and let the Judge make the decisions for both of you. Once the Judge makes the decisions they are final and become part of the Marital Settlement

Agreement, at which point the Final Divorce Decree will be granted. The typical issues that are disputed and end up being decided by the court are as follows; the child support obligation, the spousal support obligation, the division of the assets, the child custody and visitation arrangements, and the distribution of debts.

As mentioned before, this is a very brief overview of the divorce process. There are several other steps and forms that may be needed to be filed along with possible court appearances. When deciding to get a divorce it is always best to hire a lawyer that has experience in family law matters and he or she will guide you through the process in a professional and organized manner.

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The spouse that files for the divorce is known as the plaintiff and his/her attorney files the case that is known as Complaint For Divorce in the County Clerk’s office. Once the Complaint is filed The Friend of The Court receives the copies of the Complaint. Once this is done, the other party who is known as the Defendant has the option to dispute some of the claims that the Plaintiff has laid down in the above. When the defendant disputes some of the claims as his/her response in the same office that has been made by the plaintiff the divorce case becomes a contested one.

Step 3: Discovery Procedures

This is the process in which the attorney seeks necessary information that you have not been able to previously provide. There are many legal tools an attorney can use to receive vital information. The most common is a deposition: A deposition is a statement that is recorded for later use. It allows each side to gain information from each other and expert witnesses. A court reporter is always present, so the questions and answers stated can be verified at a later date. It is valuable because the testimony of a witness can be delivered at the deposition if he or she is not available on the court date.

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Step 4: Negotiations

Once all the information desired by each side is acquired, theb strengths and weaknesses should be evident. It is at this point both sides bargain for specific claims requested.

A large number of divorces will be settled out of court through negotiation, but if not the next step in the procedure is the pretrial hearing.

Step 5: Pretrial Hearing

Both sides are interviewed in front of a judge or panel of attorneys acting as a mediator. The issues addressed in the big trial will be given attention, in order for the judge or panel to provide knowledge that will hopefully lead to a out of court settlement.

There may be more than one pretrial hearing as further negotiations take place.

The attorneys to both the parties may put forward a request that the Court passes the order of status quo when the divorce proceedings are going on. This order under law is known as the Ex Parte Order or a Temporary Order. You will also find that the child support and the parenting time is also included in this order. When this order is drafted there are certain factors that are generally taken into consideration.

Before the final judgment is passed the courts of law ensure that the decision is reached after the evaluation of these factors. The courts will have to decide on the provision of care along with the control and the maintenance of any minor child or children. The visitation rights of the parent are also taken into consideration. The distribution of assets and liabilities of the spouses also need to be taken into consideration. The financial contribution of the non-custodian parent to support the child also requires being successfully determined. The court will also decide on whether the wife will take back her maiden name. The residence and the contact of the child also are determined. The tax laws that are applicable when the property is being distributed are also taken into account. There are other issues that are also taken into consideration and very often most of the above issues are also resolved without the hearing before a judge.

There may be an additional provision in the case of minor children where the court is asked to wait for six months from the date of filing the petition. This period is called the waiting period. It is during this time that certain enquiries are made and the parties to the suit may engage themselves in mediation and counseling. Once the waiting period has expired the case is heard before the judge. Most of the suits are resolved and the court tends to take the testimony of one of the spouses and in this manner the decree for divorce is granted. The divorce papers are called the Judgment of Divorce and it is prepared by the attorneys to the case and given to the Judge for signature. After the above Judgment of Divorce is granted any matter that may arise between the two spouses before a competent court of law is known as Post Judgment Proceedings. In simple divorce proceedings the parties to the suit only appear once and if the suit is a complex one the proceedings may take time.

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In most of the states in the US there is a minimum waiting period and that is six months. This period cannot be waived even if there are proper divorce proceedings. It is during this period that remarriage is not allowed and the waiting period starts from the date of the filing of the suit. The spouses need to abide with the above requirements if they intend to remarry.

Currently there is an alternative form of divorce that helps the spouses to speed up the proceedings. Individuals have the benefits to go in for online divorce proceedings also. This form of divorce is often resorted by individuals in order to keep their stress levels under control as the divorce proceeding can be physically and emotionally tiring. Online divorce is resorted to by many people and it is also a popular form of divorce in the US today. The online divorce differs from the above in a few ways however there are lesser legalities that are involved in the procedure. The divorce needs to be an uncontested one and in order to successfully attain the divorce the parties require to resort to an expert online divorce service provider. In the above manner they are able to get divorce however they should ensure that the service proOnce the irrevocable decision to divorce is reached, it is never a harmful idea to consult with an attorney or perhaps undertake independent research at a law library to educate yourself with respect to your legal rights and responsibilities. Specifically, find out about your home state’s laws in reference to separation and their impact on such issues as child custody, child support and alimony payment, debts incurred after separation, and valuation of marital assets and their increase/decrease after separation.

On the financial side, take the time to gather up all financial paperwork and make copies of all such documentation. Analyze the financial aspect of the impending divorce and, perhaps most importantly, freeze access to or outright close all joint accounts.

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Leaving the Marital Residence

The following step would be to physically separate, where one party actually takes residence at another address than that of the family home. While there are no legal issues ‘in this regard, there are and will be significant financial considerations.

Therefore, it is important to document all debts incurred, joint bills paid, and improvements to the marital property of residence after such separation. Moving and other related expenses should be accountable and any and all insurance policies should be kept consistent with current living arrangements. It is at this time that you will want to start thinking about the tax issues involved, i.e., will you and your spouse file jointly or separately come time.

Filing for Divorce

At this point one spouse will file the actual complaint or petition for divorce with a court of law. It is at this time that the formal divorce proceedings have officially commenced. In accordance with applicable law, the non-filing spouse must file an official answer or response.

Temporary Orders

The next stage occurs when one spouse files a formal request for temporary court orders with respect to issues such as alimony, child custody, visitation rights/privileges, and child support payments. In some cases, the request will include a provision for one spouse to pay for the other’s attorney expenses. It is strongly advised that documentation of any and all alimony and/or child support payments made take place. The reason for this would not only provide evidence of compliance with any Written Agreement or Court Order, but is way of ensuring that tax deductions will be possible.

Discovery Process

Procedures used to obtain information with respect to a particular case, known as legal discovery, will then take place. It is here that the formal amount of alimony and/or child support payment to be made upon finalization of divorce will be determined. No less important is the conduction of financial fact-finding procedures. It is not unwise to draw up Net Worth and Cash Flow statements that will ultimately be influential with respect to the final division of marital property and assets. You may want to hire professionals such as accountants, tax advisors, appraisers and the like to help you accurately establish actual monetary values as well as advise you of all relevant information with respect to tax consequences and other risks associated with the retention or surrender of property or assets. Make a formal list of stocks and note where the certificates are kept. Document savings and checking accounts are where the passbooks are. Do the same with respect to Deeds and related records for real estate ownership. You may wish to formally employ a Forensic Accountant, who is specially trained to search for assets that one spouse might attempt to hide from the other. In the instance that you suspect such is happening, is it important to inform your attorney of any such concerns.

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Settlement Negotiations

Now the actual legal and financial settlement negotiations will begin. This can be achieved through the use of attorneys-at-law representing the individual parties, a mediator mutually agreed upon by both parties, an arbitrator with the power to make binding decisions that will be transferred to the actual court findings, or through the amicability and cooperation of the actual divorcing parties themselves. In is in the last case where a great deal of money can be saved in terms of actual fees paid to professionals and actual trial expenses, i.e., court costs and expert witness fees (monies paid to professionals who actually testify at legal proceedings). However, it is also very important to make sure that all legal issues (alimony. child custody and support) as well as financial concerns (tax ramifications, potential fiscal advantages and/or pitfalls) are thoroughly addressed and acceptable and equitable conclusions are reached.

Settlement Agreement

A Martial Settlement Agreement will then be formally drafted. This document will incorporate the terms of the Written Settlement or actual Court Order. The Martial Settlement Agreement will then, in turn, be factored into the final judgment with respect to the divorce as reached by the court of law.

Judgment of Divorce

Once the final judgment of divorce is handed down by the court, the divorce is legally over. At this point, it is best to confirm that all legal documents, such as deeds, registration forms, and other ownership documents have been updated to accurate reflect the now formally divorced status. Lastly, go over all financial papers, such as bank account passbooks, stock certificates, insurance policies, wills, etc., to ensure that these also accurately reflect the completion of the divorce process.

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