Steps Involved in a Divorce Process
Do you know what to expect once the process starts?
Petition For Divorce
To begin the divorce process, a document called “Summons with Notice” is filed with your local court clerk. In some states, this is referred to as a “Letter of Complaint.” Both documents are requests that the court grant a divorce and list any relief the party filing for divorce feels they are due.
The original petition will identify the parties to the divorce and any children they may have. The party filing for divorce will have to state a reason as part of the petition or letter. In most states, this will be “irreconcilable differences” or “incompatibility.”
The person filing for the divorce will be named the “petitioner” by the courts while the other party to the divorce is referred to as the “respondent” or, in some states, the “defendant.”
The original petition or letter of complaint is then served on the respondent. Normally a member of the local sheriff's office serves the petition. Once the respondent has been served he/she has thirty days to hire an attorney and respond to the original petition for divorce. It is at this time that either party may ask for restraining orders, protective orders, or temporary orders pertaining to child support and alimony.
Temporary Divorce Orders
The court can issue temporary orders that outline specific actions that must take place immediately and last until the final divorce hearing. Examples of things covered in temporary orders are child support, spousal support, and child custody. These orders are legally binding and not following them will mean finding yourself in contempt of court. If found in contempt, you can be jailed or fined according to the discretion of the judge.
“Discovery” is a legal mechanism designed for gathering information about either party to the divorce.
There are five steps to the discovery process. Although states and their laws may vary during the discovery process, the five steps below are common and will probably become a part of your divorce.
Disclosures: Every state has rules of civil procedure and the way disclosure is conducted is determined by those rules. Attorneys for both parties request certain items from the other party. The list of items is sent to the other side and they must respond within thirty days.
Interrogatories: This is a list of questions that the attorneys send to the opposing side. Most states set limits on how many questions and the response time is thirty days.
Admissions of Fact: This is a written list of facts that is directed at the other party to the divorce. The party receiving the list of facts is asked to either admit to or deny each listed fact.
Request for Production: This is a legal mechanism used to obtain documents such as bank statements, statements of income, or any documents the attorney feels will benefit his client. The party receiving a request for production is supposed to respond with the documents within thirty days. This part of the process can become a major obstacle to a swift divorce. It seems to be human nature to not want to turn over personal information and many times delay tactics are used at this part of the process.
During depositions, attorneys will take sworn testimony from the opposing party and any witnesses involved. Anything said during a deposition can be used in court should an agreement not be met and you end up in divorce court.
If you are lucky, this is as far as you will get in the process. During mediation, both parties to the divorce and their attorneys meet to discuss any conflicts they may have and try to come to an agreement that meets the needs of both. The “mediator” is a court-appointed attorney or arbitrator and is there to negotiate a settlement between the parties.
If mediation didn’t work and there are unresolved issues a trial date will be set. During the trial, both parties have the chance to argue their case before a judge. It’s imperative that you discuss, with your attorney, proper courtroom behavior so you can make a good impression on the judge. You may have a great case, witnesses lined up, and proof to back up any claims you have. Those mean nothing if you go into court looking like something the cat dragged in, or acting like a bully and know it all.
The judge will then examine all the evidence and make a decision based on what he feels would be a proper divorce settlement and outcome. Most judges had down orders within 14 days of the court date. If you don't hear something within a couple of weeks it's a good idea to contact your attorney and have them notify the court that you are still waiting for orders from the judge.
Once a judge has made a decision, the parties to the divorce will sign the final decree of divorce. The final decree states how any marital property will be divided, any orders pertaining to custody of the children, child support amounts, and any spousal maintenance that is ordered and any other issues pertinent to the dissolution of the marriage.
Read carefully the wording of the final decree before signing. If you wish to make any changes, now is the time to request that be done. If there are any mistakes in the way the decree is worded, you want to catch those before adding your signature.
Appealing a Judgment of Divorce
If you feel that the court's orders are unfair, you may then file a motion to appeal the order and request a new hearing. This motion is filed with the same judge that put in place the orders and not many judges are going to set aside their own orders. You should not be surprised when the courts deny your motion. When the court denies your motion, you file an appeal with the state appellate court.
Marriages of short duration where there are no children or marital assets to split will see their way through the process rather quickly. If you have children and have accumulated assets during your marriage, you should not be surprised when the divorce seems to turn into a long, drawn-out, and at times frustrating process. Be patient because the Family Court system is hard at work trying to protect the interest of all parties involved in a divorce action.
There are seven grounds, legally acceptable reasons, for a divorce in New York State:
irretrievable breakdown in relationship for a period of at least 6 months
This ground is usually called a no-fault divorce. To use this ground, the marriage must be over for at least 6 months, and all economic issues, including debt, how the marital property will be divided, and custody and support of the children have been settled.
cruel and inhuman treatment
To use this ground, the Judge will be looking for specific acts of cruelty that happened in the last five years. It is not enough that you and your spouse had arguments or did not get along. The cruelty must rise to the level that the Plaintiff is physically or mentally in danger and it is unsafe or improper for the Plaintiff to continue living with the Defendant.
To use this ground, the spouse must have abandoned the Plaintiff for at least one year or more. Two examples of abandonment: where the spouse physically leaves the home without any intention of returning or where the spouse refuses to have sex with the other spouse, this is called "constructive" abandonment.
To use this ground, the spouse must have been in prison for 3 or more years in a row. The spouse must have been put into prison after the marriage began. The Plaintiff can use this ground while the spouse is in prison or up to 5 years after the spouse was released from prison.
To use this ground, the Plaintiff must show that the spouse committed adultery during the marriage. This ground can be hard to prove because evidence from someone besides the Plaintiff and spouse is needed.
divorce after a legal separation agreement
To use this ground, the Plaintiff and Defendant sign and file a valid separation agreement and live apart for one year. The separation agreement must have specific requirements included to be valid.
divorce after a judgment of separation
This ground is not used very often. To use this ground, the Supreme Court draws up a judgment of separation and the married couple live apart for one year.
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