The divorce process varies based on state and the unique circumstances of your marriage and separation, but the basic steps of divorce are relatively similar from case to case. Generally speaking, the divorce process begins when one spouse files a complaint, and the other spouse “answers” the complaint, and/or files a counterclaim.
Anatomy of a Divorce
Understanding the divorce process is critical to protecting your rights and best interests, and avoiding potential conflicts before they arise.
By consulting with an experienced and reputable divorce attorney, familiarizing yourself with the divorce process, and determining your goals and objectives, it is absolutely possible for your divorce to go smoothly and end favorably for all involved parties. While it’s rarely fun and easy, divorce doesn’t have to be painful.
After initial documents have been filed, the “discovery” part of divorce begins. During the discovery process, both spouses provide financial details and other information that must be shared as part of a divorce. Discovery is also when both parties determine whether or not spousal or child support must be paid, and how to divide any marital property.
Couples going through a divorce typically need to decide on a few major issues before resolving the divorce and moving on with their lives. These issues frequently include division of marital property, such as the family home, other real estate, vehicles, retirement accounts, and other jointly-owned assets; whether or not spousal support (alimony) and/or child support should be paid by one spouse; and child custody arrangements.
Division of Property
Dividing marital property, which is property acquired by one or both spouses during the marriage, is a primary focus of divorce. Property division is handled somewhat differently based on state, property type, how it was acquired (inheritance, before or during marriage), and other factors. There is significant gray area when it comes to property division in a divorce, so it’s in your best interest to consult with a divorce attorney in your state before moving forward.
Child Custody and Support
Child custody and child support arrangements are a common focus of divorce involving children. Generally speaking, it is in the child’s best interest to spend time with both parents, so shared custody is typical. Shared custody can be a 50/50 split, or one parent can have primary custody while the other has the children on weekends or another agreed-upon schedule.
It is important to note that custody can be both physical and legal. Where physical custody refers to the time spent with each parent, legal custody refers to how the parents decide on major issues, such as the child’s education, religious upbringing, and health care. It is possible for both physical and legal custody to be shared 50/50, or for another arrangement to be established.
In most cases, the parent with a greater share of custody or with a lesser income will receive child support payments from the other parent. If there are disagreements on physical or legal custody, or child support arrangements, don’t panic. These issues can often be resolved without going to trial, through mediation, or another form of pre-trial resolution. Having an experienced lawyer by your side can be of immense help if such concerns arise.
When Trial Becomes Necessary
When both parties agree on the major issues—a division of property, child custody, and spousal support—the divorce can likely be resolved without going to court. If, however, there is disagreement over any major issue, a trial may be necessary. At trial, both spouses can provide evidence to support their position on property division, alimony and child support, and child custody. They can also call witnesses, and testify about any relevant issues.
Going to trial doesn’t automatically mean that your divorce has to be messy, and expensive. One of the main reasons complicated divorces take an ugly turn is that emotions often run high, and emotional decisions are rarely good ones. Having an experienced, skilled, and compassionate divorce attorney by your side dramatically improves your ability to make clear, practical decisions that are based on your best interests, and not on emotions.