Introduction
The goal of the legal process of divorce is to end the marriage and decide such issues as child custody, visitation, child support, alimony (sometimes called spousal support or maintenance), property and debt division and attorney's fees and costs.
A divorce judgment can be based on an agreement between the parties or result from a trial. An agreement is usually less traumatic for you and your children, and less expensive than a trial. Ultimately, most cases are resolved without a trial.
Divorce is called dissolution of marriage in some states.
Divorce Proceedings
The divorce process varies from state to state. What procedures are available and how long the process lasts is unique to each state's court system. Your lawyer can explain how the process works in your state. The following general description applies in most states.
1. The Petition
A divorce begins with the Petition. This document notifies the court and your spouse, when served, that you want the court to end your marriage. It also lists what you are asking for, such as child custody, child visitation, child support, spousal maintenance (alimony), property division, attorney's fees and costs.
2. The Response
After a Petition is served, the other spouse (the Respondent) is entitled to file opposing papers. In Arizona, if you are served with a Petition, you must file your opposing papers as the Respondent within twenty days if you are in state or thirty days if you live out of state, or you will lose your right to present your side of the case to the court, and the court might give your spouse everything asked for in the Petition through a default divorce.
3. Temporary orders
Temporary orders, also called pendente lite orders, set the rules while the case is pending. Either party can ask the court to make temporary orders stating, for example, who stays in the house, who is responsible for the children, who pays which bills and restraining inappropriate conduct. It is in both spouses' best interest to agree upon reasonable arrangements while the case is pending rather than incur additional legal fees and add to bad feelings by having to go to court for temporary orders. In Arizona when children are involved, temporary orders for child support will automatically be ordered by the court when a divorce proceeding is filed or the other spouse is served. However, this process can take several months to be completed and temporary orders are generally a more expeditious means of having this order issued.
4. Discovery
Each spouse is entitled to information from the other about the case. The legal procedures for obtaining that information are called discovery. Discovery may be a simple, speedy process or one consuming a great deal of time, energy and money. Often times the depth of discovery depends upon the size and value of the estate and the length of the marriage.
There are several different discovery procedures, sometimes referred to as discovery devices. A list of questions known as interrogatories, requiring a formal written answer to each question, may be sent. By a request for production one party may obtain documents from the other. In a deposition, or examination before trial, the spouses and other persons, including experts, may be required to answer questions under oath in a lawyer's office while a court reporter takes down what is said and then prepares a transcript. If your deposition is to be taken, there will be advance notice and your lawyer will discuss the procedure with you.
Discovery may be conducted informally. It is often more efficient and less expensive for lawyers informally to exchange documents and information than to send and respond to interrogatories and requests for production and to take depositions.
5. Negotiated settlement
Most lawyers and judges agree that it is better to resolve a case by agreement than to have a trial in which a judge decides the outcome. Also, people who have been through a divorce value the privacy and control that a negotiated agreement gives them. People are more likely to obey a judgment which is based on their agreement than one which has been imposed on them by a judge. Voluntary compliance is important because enforcement procedures available from the court are usually expensive and sometimes inadequate. For these reasons, negotiating a settlement is often to both parties advantage.
In Arizona, mediation may be ordered by the judge in an attempt to settle many if not all of the issues pertaining to the dissolution of marriage.
Although your lawyer may recommend that you accept or reject a particular settlement proposal, the decision to settle or not to settle is yours. Your lawyer cannot and will not make that decision for you.
If a case is settled by agreement early on in the process you may never see the inside of the courthouse, however, there are still certain legal procedures that have to be followed to turn your agreement into a judgment and end your marriage.
6. Trial
If you and your spouse cannot settle your case, it will go to trial. At trial you each tell your story to the judge. It is told through your testimony, the testimony of other witnesses, and documents called exhibits.
Trial is likely to be expensive and unpleasant. However, it can be the only alternative to never-ending unreasonable settlement demands. Still, trials are risky. No lawyer can predict the outcome of a trial because every case is different. A judge, a stranger - possibly with a viewpoint, temperament and values very different from yours - tells you and your spouse how to reorder your lives, divides your income and assets, and dictates when each of you may see your children.
Sometimes, a trial does not end the case. Each party may, within a limited period of time, appeal to a higher court. An appeal adds more time and expense to the divorce process and is hard to win.
7. Children
A. Custody Issues
Ordinarily parents make decisions about their children together. But when parents divorce, the hostility between them sometimes causes them to disagree on what is best for the children. In addition, divorce presents a whole new set of child-rearing challenges. Even the best parents may find it useful to consult a child development expert for help in meeting these challenges.
Issues related to children can present challenges for your lawyer as well. While your lawyer's loyalty is to you, your lawyer also has an obligation as an officer of the court to keep the best interest of the children in mind, even if that interest is inconsistent with yours.
B. Legal and Physical Custody
Physical custody is the responsibility of having the children live with you. The parent with whom the children are at the time has the responsibility for making day-to-day decisions about them. Day to day decisions include what the children eat and wear, who they play with and when they go to bed. Legal custody is the right to make important long-term decisions affecting your children's welfare. Long-term decisions made by the parent with legal custody may include the children's education, religion, and non-emergency medical care.
Many variations are possible. There can be joint legal custody and sole physical custody, and vice versa. Joint legal custody does not necessarily mean that there is equal time sharing of the children. Usually the parent without physical custody has visitation rights, also called access or secondary physical custody. The terminology is less important than how the arrangement works in practice.
C. Joint Custody
There is no one standard joint custody arrangement. Some parents alternate weeks with the children, others alternate months. Still others divide the children's time unequally, but in a manner that meets the needs of each particular family. Parents who work out these arrangements themselves are usually more creative than courts are when the parents can't agree. Legal custody, in which the parents share the right to make certain decisions for the children, can also be joint or divided in appropriate cases. Joint custody is not necessarily appropriate in every case.
D. Child Support
The amount of child support which you will have to pay or be entitled to receive depends on income, the custody arrangement, and other factors. The amount of child support is usually determined by guideline formulas. These formulas have the advantage of making the amount of support more predictable and the disadvantage of being too rigid, and therefore inappropriate in some cases.
E. Your Conduct With Your Children
The behavior of parents before and after divorce has a great influence on the emotional adjustment of their children. The following guidelines may be helpful:
- Put your children's welfare first. Never use your children as a weapon against your spouse.
- Be sure your children have ample time with the other parent. They need it.
- Visitation should usually not take place in the children's home.
- Don't introduce your children to your new romantic interest until the children have adjusted to your separation and your new relationship is stable.
- Don't bring your children to court or to your lawyer's office.
- Keep to the schedule. Give the other parent and the children as much notice as you can when you will not be able to keep to the schedule. Be considerate.
- Be flexible. You may both need to adjust the schedule from time to time.
- Giving of yourself is more important than giving material things. Feverish rounds of holiday type activities during every visitation period or lavish gifts may be viewed as a crude effort to purchase affection, and is not good for the children.
- Do not use your children as spies to report to you about the other parent.
- Do not use the children as couriers to deliver messages, money or information.
- Try to agree on decisions about the children, especially matters of discipline, so that one parent is not undermining the other parent's efforts.
- Avoid arguments or confrontations while dropping off or picking up the children and at other times when your children are present.
- Don't listen in on your children's phone calls with the other parent.
- Maintain your composure. Try to keep a sense of humor. Remember that your children's behavior is affected by your attitude and conduct.
- Assure your children they are not to blame for the breakup, and are not being rejected or abandoned by either parent.
- Don't criticize the other parent in front of your children. Your children need to respect both parents.
- Do not let guilt you may feel about the marriage breakdown interfere with discipline of your children. Parents must be ready to say "No" when necessary.
- You are only human. You cannot be a perfect parent. When you make a mistake, acknowledge it and try to do better next time.
