There are a number of ways to handle a divorce. If you and your spouse are on good terms, you can try to agree on how you will divide your property and care for your children. You can use a mediator to help you resolve these issues, or negotiate directly or through attorneys. However, if you absolutely can’t reach an agreement, you will have to go to court.
Mediation, collaboration, and negotiation are not good options if your spouse is acting in bad faith. If your case just won’t settle, despite all your best efforts, then you may need to go forward with litigation. In this situation, you’ll want to know how the process works, as described below.
As you will see, litigation involves a tremendous amount of time, effort, and cost. You will need to be very involved in the process, do a lot of work, and attend many meetings and hearings. You can’t just leave it all for your lawyer to handle.
You and your lawyer will work together very hard to get ready for your day in court. Although procedures vary from state to state, this article describes the basic steps you will take along the way.
1. Filing and Service of the Case
First, your divorce case must be filed with the court. The papers will ask that your marriage be dissolved, and for any other relief you may seek, such as spousal support, property and debt division, a restraint on the dissipation of assets, custody, visitation, child support, and attorney’s fees. There may also be a request for a restraining order or for exclusive possession of the former marital home.
Some states now recognize only no-fault divorce. If your state still recognizes fault grounds for divorce, those will also be spelled out in the case.
The case has to be served. You may come home one day to see that the sheriff has taped a bright yellow plastic bag containing papers to your front door, serving you by posting. If your spouse (or your spouse’s lawyer) is really a jerk, you may be personally served by private process server at work, at a party, or at some other embarrassing locale.
You may be served with only the initial document, or with lots of additional documents, such as discovery requests, a motion for temporary relief (such as spousal or child support pending the hearing), and a notice of the date on which that initial motion will be heard in court. The papers may also include a deposition notice, requiring you to appear in your spouse’s attorney’s office to answer questions under oath before a certified court reporter.
There will be deadlines by which you will have to respond in writing. Often, these deadlines can be extended. However, you should be very careful about meeting the deadline for responding to any requests for admission. Failing to respond to these questions on time may mean that the court will treat all of the facts in question as “admitted,” even if they are blatantly untrue.
At the beginning of the case, each side will conduct discovery, so as to “discover” all the facts of the case. You may have to answer written questions under oath, within set deadlines. You may receive requests to either admit or deny various statements, also under oath.
You may also have to respond to a request to produce documents, such as paystubs, tax returns, retirement statements, account information, mortgage information, your credit card receipts and statements, copies of your check registers and bank statements, notebooks and diaries, and maybe even a copy of your computer hard drive.
You may be deposed to answer questions under oath. Subpoenas may also be issued summoning your friends, family, paramour, paramour’s spouse, coworkers, neighbors, and acquaintances to your spouse’s attorney’s office, to answer questions under oath before a court reporter.
Your final trial date may be set early on in the case, or may be set later on. That final hearing date could be six, eight, or ten months from the date the case is filed, when the court has an unscheduled day or two free on the docket. Once you get a trail date, your attorney will try to change it if you or the attorney has a conflict.
Prior to that, you may have a short hearing on a motion for temporary relief, seeking an order granting either of you temporary custody, visitation, child support, spousal support, or a restraint to keep things calm until your divorce is decided. You may also have other hearings on other motions prior to trial. You may have a separate custody hearing, at some point between the initial filing of the case, and the date of the final hearing.
Although your trial date is six months or more away, you and your attorney hardly have enough time to do discovery, analyze all the documents and deposition transcripts, line up expert witnesses, get property appraised, do a business valuation (if applicable), and analyze all the numbers regarding separate and marital shares of all the finances.
Witnesses who have seen, heard, or otherwise perceived things – like you and your spouse – are called “lay” witnesses. You may testify about facts, but not opinions. Only “expert” witnesses can render opinions. If you want to value a house, a business, or certain other assets, or if you want to talk about someone’s mental or physical health, point out that someone could be earning more money, or testify that the children would be better off living with you rather than your spouse, you will usually have to hire an expert. Your spouse may well do the same.
4. Pretrial Matters
Your local court may set a pretrial conference, at which you will let the court know how long you expect the trial to take, which issues remain to be decided, and so on. Counsel may enter into stipulations, or agreements, as to some issues. The court may also decide certain pretrial motions, such as whether certain evidence will or won’t be admitted at trial.
The court may order you and your spouse to attend a settlement conference, often with a retired judge, to try to get you to work out your differences. You may both be required to attend a parenting class.
There will be a date by which you must each name the witnesses who will testify, disclose what your experts will say, and identify every document you intend to introduce into evidence at trial. Before trial, you will also have a deadline to object to any evidence the other side proposes to submit.
5. Preparation of Testimony
All of the witnesses must be prepared. Your witnesses should know what they will be asked, and your attorney will need to know how they will answer. The witnesses should also be told about the process: how to talk, how to dress, what to say, and what need not be said. However, your attorney will take care in imparting this information. Your ex’s lawyer can ask what witnesses discussed with your lawyer, and it won’t help your case if your witnesses were coached or told what to say.
Your testimony must be prepared. For every request you will make of the judge (for child support or alimony, for example), the judge must consider certain factors. Those factors are all listed in the state law books. You need to know what those factors are, to make sure that you address every one.
All of the documents must be organized, copied and labeled. In some jurisdictions, trial notebooks are required, in which each side has an indexed listing of documents, and all of the documents are neatly arranged behind numbered tabs. Each lawyer, the judge and the witness on the stand all have a notebook from each side to refer to. Or instead, the attorneys may be operating with labeled folders, or with piles of papers with post-it labels attached.
6. Attorney Discussions
Any offers of settlement one lawyer makes to the other are supposed to be conveyed to the parties. If an attorney doesn’t pass on a settlement offer, it’s a violation of legal ethics. Your attorney will likely continue trying to settle the case even while getting ready for trial. Perhaps you will reach agreement on some of the issues or some of the facts. Even if you can’t settle the whole case, these negotiations may narrow the issues for trial.
7. The Big Day: Trial
Make sure you know how to get to the courthouse, and through security; your witnesses will need the same information. In some counties, you may wait in line for quite a while to enter the building, only to learn that you must then go put your camera cell phone and nail clippers back in your car on the fourth floor of the parking garage, then get back in line. You need to know how to find not only the courthouse, but also the courtroom where your trial will be. You should also plan plenty of time for traffic and parking.
When your case is called, you will move to the front of the courtroom. Your witnesses will be sworn in, and then sent out into the hallway, with instructions not to discuss their testimony with each other. They will be called into the courtroom one at a time to testify. Be sure to tell each of them to bring a book or a magazine, unless staggered times have been arranged for them to arrive.
The judge will inquire as to any “preliminary matters.” There will always be something the lawyers will want to tell or ask the judge right before getting started. Then you will get started.
Each side makes an opening statement. The, the party that filed for divorce will start presenting the facts by calling a witness to testify. That witness may then be cross-examined. There may be some testimony on redirect in response to the cross-examination. All of the first side’s witnesses are called and cross-examined, perhaps with some redirect, one by one. If the opening party has any expert witnesses, they will also testify.
The other side then calls witnesses one by one for testimony and cross-examination. When that’s finished, the first side may call rebuttal witnesses, who may also be cross-examined. Objections will be made, the judge will rule on those objections (either sustaining them or denying them), documents are introduced and admitted into evidence or excluded, and the judge may ask a question or two.
After the last document and last word of testimony is submitted, each side may present a closing argument. Or if it is too late in the day, the judge may ask for written closing statements.
The trial may be one day long, two days long or longer. may start at 9 a.m. or later each day, and will end at 4 or 5 p.m. each day. There will be a break of about one hour each day for lunch. If your trial is more than one day long, your attorney, and possibly you, will be working late into the night after each day of trial, locating and preparing rebuttal evidence.
8. The Rulings
The judge may rule orally right at the end of the hearing, or may take the matter “under advisement.” If the judge does not rule right away, you may have to come back another day to hear the rulings, or the judge and his or her law clerk may prepare a letter opinion and send it to both attorneys.
However, the ruling isn’t the last step of the process.
One of the attorneys must then write the judge’s rulings into one or more court orders. There may be a comprehensive final decree of divorce, or separate orders on property, spousal support, custody, and child support. Pension orders may have to be prepared, as well as orders for continuing health insurance for children.
Before the written final decree of divorce is submitted to the judge for entry, you must decide if you want to appeal anything. If you do, your specific objections must be written into the order that the judge will sign. If you don’t object to the specific rulings with which you disagree at the time the judge signs the order, preserving those particular objections, you can’t appeal.
If the two attorneys disagree over the wording of the proposed written order, you will have to go back to court to hash out the matter. Eventually, an order or orders will be prepared that everyone can agree upon, or must accept, and which the judge will enter. When the pen is lifted from the paper, you are divorced.
10. Are We Done?
As long as there is no motion for rehearing or motion for reconsideration, and assuming neither of you have filed an appeal, now you have to actually carry out the rulings. Property must be sold, refinanced, conveyed, or divided. A new deed to the former marital home may need to be prepared, to avoid unintended survivorship or inheritance consequences. If you die after you are divorced without a will, before retitling the former marital home, your new spouse and your ex-spouse could each own half of that home together. (How cozy!) Visitation arrangements must be put into effect. Payroll withholding orders for support may have to be entered, and pension funds may have to be transferred.
And you must pay your attorney for all of the fine hard work done on your behalf, regardless of whether you “won” or “lost.”
Then, if you have children together, you will have to get on with the often very hard work of parenting with your ex.
(This article is excerpted from Rachel Virk's book, The Four Ways of Divorce, available at www.thefourwaysofdivorce.com).