With the current rate of divorce in the U.S., everyone knows multiple people who have been divorced and at least one who is going through one at present. As such, let’s be frank from the start: if you’re reading this now because you are going through a divorce yourself you are certainly not alone. On any given day, except weekends and holidays of course, thousands of people are in the process of requesting their local court to grant them a divorce. So if you’re wondering what’s going to happen when you or someone you know goes to stand before a judge at divorce court there are lots of resources and other people out there who have been there and can help you navigate the often confusing legal processes, and help you avoid the vultures who would take advantage of your situation. To get you started, this article will help identify exactly where you may need help and what to expect throughout the process. As a note, because it adds infinitely more complexity to the process, this article will not discuss divorces where child custody is also at issue.
From the very start, and at many points throughout, the divorcing parties have opportunities to make the entire process easier: cheaper, less stressful, and quicker in other words. At every such point the key is to be able cooperate with the other party as much as is possible. Easier said than done, right? In most cases their getting a divorce precisely because they cannot agree and cooperate. That’s the great paradox of divorce, but it’s true. Divorcing couples who work together and, in the end of things, come to an agreement on the terms of the divorce have a much easier time with the process. For such couples, they can, in most states, fill out all of the appropriate forms from their state’s website, sign the papers in front of a notary, file them with the county clerk, and be granted a divorce within the month. Some states do have requirements for some type of marriage counseling or a specified period of separation prior to filing, but from filing to divorce the process is relatively painless and quick.
That scenario is called an uncontested divorce. A contested divorce happens when one of the parties does not agree with the terms of the other, forcing the judge to make the decisions regarding the details of the divorce for them. Because an uncontested divorce is a fairly uncomplicated affair, we’re going to focus on contested divorces for the remainder of this article. Before we go any farther, let’s identify a few key terms and players who will be involved in the process of taking the divorce to court:
- Petition: The paper filed by one or the other person asking for the divorce. In the petition they will outline all forms of “relief” they wish to be granted by the judge. It will outline any financial arrangements they wish, division of marital property, and when they wish the divorce to be final.
- Answer: Once a petition is filed, the person against whom the petition was filed must provide an answer to the court regarding the terms of the original petition. There is always a time-restriction here: if an answer is not received in that time period the terms of the original petition will likely go through automatically.
- Petitioner: This is the person who originally filed a motion with the county court to be granted a divorce. If the other party contests the divorce, or individual details of the original petition, the Petitioner also becomes the Counter-Respondent.
- Respondent: This is the other person, the one who will be served the papers filed by the Petitioner. If the Respondent, by filing a petition of their own in answer to the original petition, contests the divorce they also become the Counter-Petitioner.
- County Clerk: This is the office where all of the documentation and evidence is filed which will be used in court. It is also where you return to receive copies of the documentation after the process.
- Judge: This is the person who will ultimately grant or deny the divorce and determine which terms will become legally binding.
- Discovery: The process of presenting to the court evidence in support of either party’s case and of obtaining that evidence by the other party.
So the process of asking the divorce court to grant relief from the marriage starts with the original petition. The petition is then sent to the Respondent through certified mail, faxed by the respective lawyer, or delivered by a constable of the court. It is limited to one of these means because the time for the Respondent to answer does not start unless the petition was delivered by an official, traceable means.
Working with a Divorce Lawyer
Speaking of lawyers, there is absolutely no situation where having a lawyer is required. Whether they choose to hire a lawyer will be entirely up to each party, but at a minimum if one person hires a lawyer the other would be well served to do the same. In almost all cases of contested divorces, hiring a competent lawyer will make the process much easier: they understand the court processes, usually have connections within the system to help move things along, and, most importantly, if they are a local lawyer they likely know a lot about the judge and how they generally make decisions.
The down side? Lawyers, especially the ones who are worth it, cost a lot of money. Filing the papers and paying court fees is relatively cheap, but lawyers and their services cost a lot of money, and every single thing they do for their clients costs money. So, if you have the money to pay a lawyer, it is a good idea to do so, even if all you have them do is review court documents to make sure there are no hidden clauses which mean something other than what you think. There is good free or discounted legal assistance out there for people who do not have a lot of money, but they often have more clients than they have time.
Now, with the original petition filed, the Respondent must answer. In contested cases the Respondent will usually answer with a counter-petition asking the court to grant different terms of relief than those filed by the Petitioner. In some cases the Respondent will actually file the petition in a different court, which will require the courts to determine which actually holds jurisdiction over the case. More often, however, the answer is filed in the same court and the county clerk will schedule a hearing with the judge.
While waiting for the hearing, both parties will gather the proof they need to present their claims to the judge through the discovery process. When both parties have a lawyer this can become the costliest part of the divorce process. All of the gathering of evidence requires paperwork, research, and review: all being billed by the hour at rates of hundreds of dollars. Some lawyers will even use discovery to try to drain the other client of funds, forcing them to represent themselves or hire a cheaper, less competent lawyer prior to appearing in court.
Discovery is also emotionally taxing. During this time both parties will be rummaging through all of the dirty garbage of anyone even connected to the couple. They are trying to find any scrap of evidence which will bring more weight to their case, no matter whose embarrassment they might cause. It is imperative that you be entirely honest with your lawyer here: they are bound to keep your information confidential, but they cannot combat the claims of the other party if they do not know what they are dealing with. No matter how embarrassing it might be, tell them everything that they need to know about every skeleton in every closet.
Again, the easiest way to lessen the financial cost of discovery is to agree with the other party as much as possible and avoid it altogether. However, once you are in it, the cheapest way to get through it is to do as much of it on your own as possible. There are many forms and collecting the client can do on their own and providing the lawyer with physical copies of items such as letters, emails, and pictures, as relevant, will keep them from charging printing fees.
At some point in this process the parties will begin negotiations on the terms of the final decree. Since by now it is obvious that agreement has failed, at least try to agree on as many things as possible. Remember, the court appearance is public record, so it is generally good practice to spend as little time there telling the public about your personal life as possible, and the lawyers time clock is clicking the entire time.
When it comes time for that court appearance there are a few things to keep in mind which will make your case infinitely easier. The first is court etiquette. DO NOT show up to court dressed for the pool or a rave. Dress nice, in at least business casual if not in a full suit or respectable dress. Second, be polite to the judge and refer to them as “Your Honor” no matter how many times the lawyers refer to him or her, inappropriately, as “Judge”. Lastly, lawyers should have all the material they need from the discovery process, but make sure to have all evidence necessary to argue the case.
Except where there is reason to hear a witness out of order (i.e. a witness who, because of their job, must leave earlier in the day), the judge will hear the case and witnesses of the Petitioner first. When it comes time to take the stand yourself, pay very close attention to the questions asked by the other party’s lawyer; there are many trick questions they will ask to get you to admit something you don’t mean. One popular example is, “When was the last time you beat your wife?” Most answers to the question assume guilt: the only appropriate answer should be, “Sir/Ma’am, I’ve never beaten my wife.”
Depending on just how much the parties disagree, the court may not hear all testimony in one session. Whether it is finished in three hours or three months, however, the judge will make a decision once they have heard all sides of the case. Hopefully that decision is fair and equitably distributes all property and addresses all issues the parties brought up. If a party feels otherwise they have the option to appeal to a higher court, essentially starting the entire process over again and dragging out the case. Most times, though, the first appearance suffices and the decision of the judge is enacted as law trough the signature of the judge on the final decree.