Understanding the Divorce Process so You are not Overwhelmed
Every divorce is unique, and the cost and length of the process is usually determined by the number of issues to be resolved. A short-term marriage without children, significant debts or property can typically be settled in a relatively short period. A marriage which involves children, significant property or substantial debt often becomes more complicated, costly and time-consuming. Going through divorce causes anxiety for all concerned, but understanding the divorce process can help reduce the unease created by this situation.Getting Started
The process begins by filing a Petition for Divorce in court. This document provides basic information including, names, addresses, dates of marriage, whether there are children and an outline of how you believe property and debt should be distributed. A filing fee will be charged by the court to start a new case.
There is not much advantage gained from who files first. There is having some control over the timing of the divorce and not being placed under pressure to respond within a set time. Also, if you file first and your divorce goes to trial you get to present your case first. Once papers are filed, they must be served on the other party. This can be accomplished by a professional process server or by someone 18 or older. That person must file an affidavit with the court stating what papers were served including the date and location of service. If service in person cannot be achieved, alternatives include service by mail or by publication in a local newspaper.
Some states, like Washington, impose a waiting period of 90 days or more after the papers have been served before the divorce can be finalized. The intent is to allow parties an opportunity to reconsider dissolving their marriage. Other states, as New Jersey, do not establish a set waiting period but may require some passage of time depending on specific circumstances.
The party who is served must file a response. New Jersey requires the response be filed within 35 days. Other states may have shorter time limits. The response usually states which issues are agreed upon and proposes alternatives to issues with which there is disagreement.Temporary Orders and Discovery
Once the divorce process has started, there are several steps usually taken prior to discussing settlement. Either party may seek temporary court orders to govern behavior of the parties while the divorce is pending. Orders are typically sought to outline use of property such as vehicles and the family home, set child and spousal support amounts and establish residential and visitation schedules for children. If there is substantial disagreement on custody proposals the court may order an custody evaluation to review the situation and make recommendations to the court. Temporary orders remain in effect and must be obeyed until changed by a judge or entry of final orders at the end of the process.
The court will usually issue a detailed schedule setting deadlines by which certain actions must be completed. This schedule may be provided when the case is initially filed in some states or, as in New Jersey, at a Case Management Conference held early in the process.
Once the divorce has been started, either spouse may submit a set of written questions to the other regarding issues related to the divorce. A request to provide specific documents may be included. Depositions requiring testimony under oath may also be scheduled. This is called the discovery process as it is intended to allow a party to discover information required to provide a full understanding of key issues. A common discovery request is to provide all documents related to financial issues such as bank statements, checkbooks, paystubs and retirement or investment account statements.Mediation and Settlement Conferences
The next steps in a divorce involve efforts to resolve contested issues. Non-binding mediation may provide a way to reach agreement. In some states, mediation is voluntary while in others it is required. Mediation may focus on financial or custody issues. The goal is to help the parties reach mutual agreements. Also, in New Jersey the parties are required to attend an Early Settlement Panel in which they present their case to 2 or 3 experienced divorce attorneys that give a non-binding suggestion how the case should settle.
Almost every state requires a settlement conference as a last effort to resolve issues and avoid trial. The conference involves the parties and attorneys informally meeting with an experienced judge other than the one assigned to the case. Both sides usually submit summaries of the issues and the proposed resolution each is seeking. The judge frequently advises the parties how issues are likely to be resolved should the case go to trialTrial and Appeal
If spouses are ultimately able to agree on all the issues, a settlement agreement can be written, signed by the parties and presented to a judge at a brief hearing. However, if issues remain unresolved, the parties go to trial before a judge rather than a jury. Very few divorce cases actually go to trial. Preparing for and holding a trial quickly escalates the costs for both parties.
Each party must prepare a written brief outlining the issues. After witness testimony and evidence have been presented and each side has argued for their position, the judge will usually make a decision within a few days and request that final orders be drafted in accordance with the decision.
A hearing may be set requiring the parties to appear in court one last time. At the hearing, the proposed orders may be altered slightly if, for example, a judge's ruling was unclear or the orders may be signed as presented. Once signed by the judge, the divorce is final. Any prior temporary orders are terminated.
If either party disagrees with provisions in the final orders, that person can file a case in an appellate court seeking review of the judge's decisions. There are deadlines to file an appeal. Appeals can easily take a year to process.
Going through divorce triggers a wide array of emotions from anger to frustration. Approaching the divorce process as a series of steps toward an ultimate goal will help you remain focused. Working with an experienced divorce attorney can assist you to navigate this difficult time and help ensure your rights are protected. If you have any questions concerning the divorce process, call Peter Van Aulen for at 201-845-7400 for a complimentary in office meeting.