A divorce is something nobody wants to deal with. Sometimes, however, it must be done for the greater good of your spouse, your children, and, most importantly, your overall health and well-being.
While it is not an easy or enjoyable process, you can go into it with confidence by knowing what to expect. The following is meant to be a quick guide to help prepare you to undergo a divorce – be sure to consult your legal team for the best advice.
Why Do People Divorce?
People divorce for a variety of different reasons. Some of these include instances of adultery or emotional/physical abuse. Others find that they are actually incompatible with one another as the relationship goes on. Some people divorce due to a spouse refusing to change or get help for harmful behaviors, such as excessive drinking, gambling, or drug use. And in some cases, couples just grow apart.
What Can You Expect?
There is really no clear-cut process to getting your divorce finalized. Everybody’s experience will be different. The basic process usually contains the following steps:
- Discuss living arrangements during the divorce process (you do not have to live apart, like movies and books often depict. Couples do not usually have the means for two separate homes).
- Discuss the divorce with your children. It is best to do this in a pair so children hear from both sides. Reassure your children it is not their fault, and mention you will both always be there for them.
- Discuss the divorce with friends and family. Do not tell everybody you know and stay off of social media regarding the divorce. Social media may be used in court when making a judgment. Only tell friends and family who need to know.
- Research what divorce law entails in your state, and get a basic idea of what to expect. Write down any questions you think of so your legal counsel can help once selected.
- Choose your attorney. Do not select an attorney who does divorces intermittently. Choose a divorce attorney and have him or her help you prepare a net worth statement. This is a document that shows what you owe and own, and provides a good foundation for divorce negotiation.
- Discuss how future living arrangements will be executed. If you are buying a home, do not rush into it. Be sure to get a home inspection and make sure to ask if there are any discounts offered on closing for the recently divorced. You will also want to use the real estate agent as the buyers’ agent if you are selling your marital home. Your closing percentage will often get reduced, saving you some money.
Finally, be sure to execute the obligations set forth by your divorce. Once it is finalized, you will change the beneficiaries of your wills and life insurance policies, as well as update allowances on W-4 forms. Be sure to submit name change forms to all applicable organizations. Update your passport and driver’s license. Take a deep breath and step into the new chapter of your life.
To get the process started off on the right foot, be sure to organize all your documentation as much as you can. Determine how you and your spouse want to divide everything so it is easier on your legal counsel. Gather documentation on the following:
- Your debts
- Your assets
- Real estate, valuable personal property, bank accounts
- Loans, credit card balances, mortgages
When it comes to court forms, you will need the following:
- Petition (this is discussed in further detail)
- Summons (describes divorce process within your county, and includes restrictions placed upon asset and debt handling during proceedings)
- Property Declaration form (if you have property in question)
- Forms regarding child visitation custody (for those with kids under age 18)
You should then have your lawyer review the forms for accuracy and ask him or her for any recommendations. If you are not working with a lawyer, you can ask for help from the courthouse’s family law facilitator. Some courts also have a self-help center.
Once the forms are filled out correctly, you will file them. You will want to make two copies of the forms so you and your spouse have them for your records. You will also pay a filing fee, which varies from state to state. Fee waivers may be available for those who have trouble affording it.
Next, you will serve your spouse the papers petitioning for your divorce.
Serving Your Spouse
Now comes the part where you must serve your spouse with the papers you have filed. There are a number of forms your spouse will need to start the process.
You can do this in many ways. You will want to do it as promptly as possible, as the court cannot proceed with your divorce unless the documents have been served.
You cannot deliver the papers yourself. Instead, you can hire a server to give the documents to your spouse. This can be a relative or friend over the age of 18, a sheriff, or a professional server.
The documents can be served in-person or by mail. The server will also fill out a Proof of Service form, and your lawyer or other court employee can ensure that it is filled out properly. Be sure to make a copy for yourself, and file one with the court clerk.
You will also need to serve your spouse with the Declaration of Disclosure forms. This is necessary for your petition to proceed. It is a form in which you and your spouse disclose your financial information, and then file with the court.
Speak with your lawyer to find out which form is right for you. There is a Declaration of Disclosure form, and then there is the simplified financial statement form. Your lawyer will know which one best suits you. Be sure to make copies of your tax returns for the past two years; it is usually required no matter which one you use.
You will then serve your spouse with these forms as well, and vice versa. This way, you are both in agreement about what assets and debts shall be divided. As always, make a few copies of the forms.
These will NOT actually be filed with the court; therefore, you will need them for your own personal records. Should a change occur within your financial situation after filing the forms, you will need to start the process over and redo the forms once more.
The Divorce Process
We will now take a look at the steps one can take when it is time to file for a divorce. These steps may vary for each individual case
1. File A Petition
The first step you will follow is that of filing the divorce petition. One spouse will have to do this, even if both parties are in agreement. This petition will state the reasons for your divorce. Depending upon the reason, check with your state to see if it makes sense to file for fault or no-fault.
2. Determine Temporary Orders
This is in the event one spouse depends upon the other for financial support or will have custody of your children. One spouse will ask the court to temporarily order support and custody. For instance, if a stay-at-home parent files for a divorce, they will need monetary support from their spouse to stay solvent and care for themselves and their children. This is granted within a few days and stays in effect until a full court hearing has taken place.
3. Service to Spouse
As previously mentioned, one spouse will need to provide the other with a proof of service of process. This is a document showing that the other party was given a copy of the divorce petition. If both parties agree with the divorce, it is best to simply have the party that filed the petition send his or her attorney to the other party’s attorney. Papers can be served to a spouse at their place of employment, but this may not be the best route if you are looking to keep the matter private.
4. Getting A Response
Whomever is on the receiving end of the service will need to respond. If the divorce was filed on the grounds of fault and the receiving party disputes the fault, the response will need to address it. Any disagreements to division of property, custody, support, or any issue should be laid out in the response.
Negotiation will be the next step of your divorce. This can take place in a few different forms. This process will take place if you and the other party cannot agree on all issues. The court may schedule conferences geared toward settlement of the issues at hand and help parties move toward a final resolution of said issues. If parties disagree about child custody and visitation, the court may also order mediation and evaluation of the children and parents by a social worker or court employee. A lawyer may also be appointed to represent the children in this situation. Negotiation can also refer to any issues about property division or spousal support.
6. The Trial
This is the second to last step in the divorce process. If you and the other party cannot reach an agreement regarding some or all of the issues at hand, your decisions will be made at trial. This will cost more money and use up more of your time. It is also less predictable, so do use caution if choosing the trial route.
The Order of Dissolution is the document that formally ends the marriage and tells how property, debts, custody, and support will be handled. By negotiating all issues yourselves, you will draft your own Order of Dissolution and then submit it to the court. The judge will then approve it if it is determined that both parties entered the agreement knowing what they were getting into and willing to do so.
Children During Divorce
It is important you and your spouse understand the different types of custody that are available when divorcing. You and your spouse, as well as your lawyers, can decide which is best for your family’s situation. The following are brief descriptions of types of custody you will encounter when negotiating child custody and visitation.
Sole Physical Custody – This means the child will reside with, and be supervised by, one parent. The court must approve the plan created by the parents for the other parent’s visitation rights.
Sole Legal Custody – This means that one parent shall have the responsibility and the right to make all health, welfare, and education decisions about their children. The other parent will retain visitation rights. Many courts favor joint legal custody, but sole legal custody is the most commonly-used custody arrangement.
Joint Physical Custody – Both parents will have significant time periods of physical custody. In a few words, both parents will more or less have continuing contact with their children.
Joint Legal Custody – Both parents will share the right and responsibility to make decisions regarding their child’s welfare, education, and health. The law is under the presumption that this arrangement is best for minor children, so long as parents can work together as a team.
Couples must submit a “parenting plan” and ensure it is workable. However, this is not the easiest arrangement, as both parents must put aside all differences for it to work.
Divorce is not an easy time for anybody, and all of us wish it could simply be avoided. However, it is important to take the time you need and speak with your lawyers to make sure you fully understand the process of the divorce. Your lawyer is working hard for you – ask him or her all the questions you need to understand.
Remember that professionalism is key in a swift process. It is okay to be emotional, but do not let emotions deter you from filing papers on time or continuing the process until the end. Remain strong during this time, and rely on your network of friends, family, and legal counsel. Remember that this time, while very difficult, will pass.