Introduction to The Legal Process
The legal process of obtaining a divorce begins by filing a complaint or summons with the court. The average length of time it takes to obtain a divorce ranges from three to fifteen months from the date of the service of complaint on the other party. The time span can vary due to local provisions and applicable state laws, but the most defining factor is the number of disputed issues that must be resolved.
Divorces can be rather expensive if or when attorney’s are hired. As soon as the divorce process is initiated, it is vital to ensure that the financial backing exists to support all the basic and professional services needed to enable a fair and satisfactory settlement.
From start to finish, most of the issues involved in a divorce either directly or indirectly revolve around money, so knowledge with respect to the fiscal issues of the marriage is an invaluable asset.
The Legal Process of Divorce
Step One: Filing of a Complaint and/or Summons. 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 (or other party such as a process server). 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.
Basic information required for Complaint or Summons:
Date and/or location in which marriage took place;
The residence of both spouses;
The names and birthdates of each child of the marrage;
Reason for declaring a divorce, (must be grounds permitted in your state); and,
A list of claims as to property, alimony, child support, etc.
Step Two: Pretrial Orders. Hopefully you and your spouse will be able to come to agreement on temporary arrangements. This will speed up the process and minimize the expense, allowing you and your spouse to focus on information pertinent to the post-divorce arrangements. Either way, proper support for each claim must 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 parte 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.
Step Three: Discovery Procedures. This is the process in which the parties seek necessary information that you have not been able to previously provide. There are many legal tools the parties 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.
Step Four: Negotiations. Once all the information desired by each side is acquired, the 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, mediation or arbitration. But, if not, the next step in the procedure is the pretrial hearing.
Step Five: 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. Remember you are responsible for accepting a settlement. A lawyer, if you decide to hire or consult with, can provide advice as to whether or not the settlement is fair, but it is ultimately your decision.
The following procedures take place:
Opening Statements – a summarization delivered to the judge by each attorney stating what they intend to prove. When the separation issues are minimal this procedure is often omitted.
The Plaintiff’s (Petitioner’s) Case – the side that originally filed for divorce delivers the evidence that supports the claims declared.
The Defendant’s (Respondent’s) Case – the delivery of evidence that denies or contradicts the claims made during the Plaintiff’s case.
Rebuttal by Plaintiff. (Petitioner)
Rebuttal by Defendant. (Respondent)
Closing Arguments by Each Side.
The Final Decision or Judgment.
Preparing for Court
Remember, one can never be over prepared for court and especially when you have hired an attorney. Beyond reviewing the specifics, other essential responsibilities of the client play a very vital role. Here are basic rules of thumb that will allow the client and the attorney, if any, to work as a successful team.
Presentation: the client should always be very comfortable, but not to sacrifice a proper and respectable appearance.
Respect: Be on time, don’t curse, address the judge properly, don’t raise voice, etc…
Relax: Even though the experience is very new, it is very helpful for your case if you are relaxed as much as possible. It is next to impossible not to be nervous on the witness stand, but one must remember to listen to all questions asked in full. Never think of an answer before the question is finished. The opposing counsel will pick up on this and use it to their advantage.
Pronunciation: Be as clear as possible. If one is soft spoken, than he or she might have to talk extra loud. Whatever is said in a court room should be heard by everyone. If an answer is not clear, someone will ask for it to be repeated. It is rarely to the benefit of the person on the stand to have to repeat anything. Be as direct as possible. One should speak as though he or she ordinarily does. For some reason people feel they must use formal language in the court room, when it only comes across as a falsehood.
Honesty: It is essential that all witnesses tell the truth. If one’s case is destroyed due to the truth, one should not be in court in the first place, that is when out of court settlement should take place. Dishonesty in the court room is obviously looked down upon, and will only worsen any situation.
FAQ’s About the Legal Process
If I file the initial complaint or summons, do I have an advantage?
In most cases it does not make any difference as far as who will get more support or assets, but it does make a difference in some cases because the one who files has a tendency to have a greater desire for the divorce. The individual who has a greater desire is often times more willing to let things slide by, so he or she will end up giving up more in order to have the process happen quicker. If a spouse leaves town in order to flee the summons there are measures that can be taken to get the divorce proceedings rolling.
Are there advantages to a no-fault divorce?
The one benefit to this type of divorce is the victory does not go to the spouse with the greatest number of complaints. Each spouse is seen as contributing the same amount to the death of the marriage, so a more equitable agreement is possible. One might think that a no-fault divorce is quick and easy, but people always have a tendency to get very greedy till its all resolved.
Are there advantages to an Adversarial Divorce?
Believe it or not, an adversarial divorce is not necessarily a horrible experience. Many people begin to experience greater hatred towards one another, which severs emotional ties that can be very detrimental later on.
Can you get a divorce if you do not know where your spouse is?
Only if the spouse has made a very good effort to locate the missing spouse and is willing if needed to testify in court under oath that a good effort has been made, then service of process may be made through a publication typically the local newspaper.
This is known as Constructive Service or Service by Publication.
How are debts obtained during a marriage divided in divorce?
Debts are not uncommon at a time of divorce and are sometimes the root of the divorce. Most parties will attempt to settle the debt disputes in the Marital Settlement Agreement, because it is during the process of divorce that the couple should typically withdraw from all joint bank accounts.
What is an Uncontested Case?
A divorce proceeding in which there are no disputes as far as the legal issues. Both parties tend to agree on all matters and are typically just ready for the whole process to be over with. Sometimes an uncontested case is caused by a missing spouse or one’s refusal to participate.
What is a Contested Case?
The minute the complaint or summons is filed the case becomes contested, and is contested until all disputes are resolved, such as support, custody, visitation, and division of assets. Many divorces start out with the intent of being uncontested under claims of no-fault, as in Arizona, but greed often takes part when disputes over the legal issues take place.
If spouses agree on everything do they need an attorney?
No. If you are going to have an uncontested divorce and you both agree on everything, you don’t need an attorney. But, one or both spouses may want to hire an attorney to review the papers and make sure everything seems fair. Caveat: Remember, attorney’s have nothing to sell but time so it’s in their best interests to create doubt as to fairness. Only you can determine what is fair and reasonable.
Can I get more money if the divorce was not my fault?
Most likely not, the state of Arizona is a “no-fault” state and therefore, does not weigh the marital behavior when making asset distribution decisions, or awarding alimony. Bottom line, the court doesn’t care who slept with who, who beat who or who left who, so it’s a none issue.
What does a mediator do?
A mediator may be used if the spouses do not wish to fight in the court room. They choose this alternative to sit down with a mediator that does not make decisions, but instead helps bring the not so clear into reality. The mediator helps the spouse’s to understand and express their objectives with the intent to be able to achieve them through negotiation. For more on family law mediation>>>
What is an arbitration?
It is less formal than a regular court hearing. A panel (normally other experienced attorneys) will hear both sides of the story. Each spouse will have the opportunity to disclose all information necessary to prove his or her claims. Each side may be represented by legal counsel, and the decision reached by the panel is final. The decision is then attached to the divorce complaint to become part of the final divorce decree.
What are pleadings?
The initial formal written complaint or summons that is filed with the court and delivered to the spouse is the first pleading, and the response is the second. The response will either admit or deny the allegations made in the complaint. Basically they are the papers filed to formally put a case before the court.
How are temporary orders obtained?
It starts with a proceeding in which one side will request some kind of relief, such as custody and support, before the final judgment on the divorce has been made. Since the divorce process can be quite lengthy at times, many disputes must be resolved on a temporary basis. Without temporary orders it is very difficult to have somewhat of a normal life during the process, especially if one of the parties is being hateful.
What if a spouse does not follow temporary orders?
A petition for contempt of court will need to be filed and if the delinquent spouse can not show good reason for disregarding the order, then a fine, called sanctions, or imprisonment may take place.
How long does it take to get a divorce?
It all depends on how difficult the case is. If it is uncontested and agreements are made very quickly then a divorce may only take about 90 days to be final. If the case is contested it could take as long as it takes.