Everyone knows someone who has gone through a divorce – but your divorce is different. Your divorce is specific to you, your family and your future. Every case is different, every judge is different, and no one but a very experienced divorce attorney should be advising you on your situation.
People facing the prospect of divorce often feel overwhelmed by the mere thought of the process. Some feel guilty because they want a divorce and their spouse doesn’t. Others have just found out that their spouse wants a divorce or has been unfaithful and they are dealing with shock and grief. If they have children, they are worried about the impact it will have on them. For most, there is the concern of financial stability. What about child support and/or alimony?
The time to sit down with an attorney is as soon as you (or your spouse) considers a possible separation or divorce. Sitting down with an attorney doesn’t mean your marriage is over – many couples go through difficult times and work through their problems. But unless you understand what options exist and how to protect yourself “just in case” you are vulnerable and risk making irreparable mistakes.
During an initial consultation, the attorney should empower you by (1) explaining the law and (2) providing very specific recommendations on how you can protect yourself “in case” – without encouraging you to end your marriage. Specifically, your attorney should advise you on issues such as safeguarding your finances and property, minimizing your financial exposure, maintaining your credit, shielding your children from conflict and harm, collecting and safekeeping records, establishing the right support network and keeping future legal fees to a minimum.
If a marriage must end, optimally the couple, with the advice and assistance of their respective attorneys, will negotiate the terms of their divorce and submit a Joint Petition to the Court. Sometimes though this isn’t advisable or possible, and a request for divorce (which is called a Complaint) is filed in Court on behalf of one of the spouses. The papers are then served on the other spouse with a Summons. Once a Complaint is filed and an Answer is submitted, the case enters the pretrial period, which will last at least 6 months. Often, the parties will go to Court to seek Temporary Orders as to who will stay in the marital home for the time being, who will pay what bills, temporary child custody/visitation arrangements, temporary support (child/alimony) and other relevant issues that need to be addressed immediately. This does not mean that the parties cannot still reach a mutual settlement of their divorce at any time during this pretrial period or even after.
During the pretrial or discovery period, both sides must provide mandatory disclosure of documents and a Financial Statement. Each spouse also has the right to demand additional information from the other called Discovery. Discovery may include Interrogatories (questions which the other side must answer in writing), Requests for Production of Documents (additional records and financial papers) and Depositions (oral questioning outside the courtroom).
Nearly all cases are settled out of Court and presented to a Judge for approval. If settlement is not achieved, however, a trial will take place before a Judge (without a jury). Each spouse presents his or her case and evidence to support it, which may include testimony by witnesses. After hearing all the evidence, the judge will study the case and issue a decision, usually several days later.
One of the most important aspects to any divorce in which children are involved is the determination of legal and physical custody as well as support. Who will make important decisions about the children’s lives? What contact will the children have with each of the two parents? How will the children’s needs be met financially? What is the appropriate amount of child support and who will pay for all the extra costs associated with raising a child?
If custody is an issue, the Court may appoint a Guardian Ad Litem (GAL) to investigate and make recommendations as to the best outcome for the children. This is often a very frightening prospect for parents, and it is important to fully understand the process and outcome. Each and every family is unique in this respect. Some families have children with special needs – these must be considered and addressed during the divorce process. If you have a child(ren) with special needs (learning disabilities, ADHD, dyslexia, autism, physical handicaps, etc…) make sure the attorney you chose is knowledgeable and has experience handling situations similar to yours.
How will assets be divided? What about business interests? Will the house need to be sold? Alimony? Life insurance? The list goes on….
Divorce has been deemed the second most stressful life event (with only death of a spouse or child being more stressful). It is a very emotional time and your ability to protect your own interest and those of your children can be compromised. Don’t go unrepresented or chose an attorney who doesn’t have the expertise you need. Chose an attorney who is highly experienced in both amicable and adversarial divorces; one you can trust, easily communicate with and who will advocate for the resolution you need and deserve.