The decision to divorce is never easy, and when spouses cannot agree on key issues, the path forward becomes more complex and a lot more expensive.
Below, our friend Amanda at Flat Fee Divorce Solutions explains the process of a contested divorce.
Unlike an amicable separation, a contested divorce requires a formal legal process to resolve disputes over property, finances, and children. Understanding this roadmap can help you navigate the journey with a clearer sense of what to expect.
The Initial Steps: Hiring A Lawyer And Filing A Petition
The first and most important stage is securing legal representation. A lawyer can assess your situation, explain your rights and obligations, and guide you through the intricate legal process. Once you have legal counsel, the formal case begins.
- Hiring a Lawyer: Your attorney will conduct an initial consultation to understand the facts of your case, your goals, and your financial situation.
- Filing a Petition: Your attorney will draft and file a legal document called a Petition for Dissolution of Marriage with the court. This document officially begins the divorce case and outlines the grounds for the divorce and the relief you are seeking, such as child custody, spousal support, and property division. The petition is then served on your spouse, officially notifying them of the legal action.
Temporary Orders: Addressing Immediate Needs
The legal process can be lengthy, and couples often have immediate needs that cannot wait for a final judgment. Temporary orders are designed to address these urgent issues while the divorce is pending.
Common Temporary Orders
These orders can cover a wide range of issues, including who will live in the marital home, temporary child custody and visitation schedules, temporary spousal and child support, and who is responsible for paying which bills during the divorce. A judge will hold a hearing to listen to arguments from both sides before issuing a temporary order that remains in effect until the final judgment is made.
Mediation: Seeking Resolution Outside Of Court
Before engaging in a costly and time-consuming trial, most courts require or strongly encourage parties to attempt mediation. Mediation is conducted with a neutral third-party. The mediator works with both spouses (and, in some places, their attorneys) to facilitate a conversation and help them reach a mutually agreeable settlement on all outstanding issues. The mediator does not make decisions but guides the parties toward a compromise. Mediation can be a highly effective way to resolve disputes, preserve relationships, and avoid the unpredictability of a trial. If an agreement is reached, the mediator will help memorialize it into a legal document to be submitted to the court. Mediation can also work partly, so that some agreements are reached and others not, winnowing down the issues for trial.
Discovery: Uncovering The Facts
If mediation is unsuccessful, the case proceeds to the discovery phase. This is the formal process by which each side gathers information and evidence from the other to build their case. It is often a lengthy stage in a contested divorce. Here are the common types of discovery:
- Interrogatories: These are written questions sent from one party to the other, which must be answered under oath. Interrogatories are used to gain specific details about finances, assets, debts, and other relevant facts.
- Requests to Produce and Gathering Financial Records: Both parties are required to provide a wide range of financial documents, including bank statements, tax returns, pay stubs, credit card statements, and retirement account information. These records provide a comprehensive picture of the marital estate.
- Depositions: A deposition is an out-of-court interview where a witness gives sworn testimony in front of a court reporter. Attorneys can ask a spouse or other witnesses a wide range of questions to gather information, assess credibility, and learn more about the case.
Child-Related Issues: Custody And Guardian Ad Litem
In cases involving children, the court’s priority is always the child’s best interests. To assist in this determination, the court may appoint a neutral professional, such as a Custody Evaluator or Guardian ad Litem: A custody evaluator is a mental health professional who interviews the parents, children, and sometimes other family members to assess the family dynamics and make recommendations to the court regarding custody and parenting time. A Guardian ad Litem (GAL) is an attorney appointed by the court to represent the child’s best interests. They will interview the children, parents, and other people in the child’s life and make a recommendation to the court.
The Final Showdown: Trial
If all attempts at settlement and mediation fail, the case will proceed to trial. This is the stage where a judge hears arguments and evidence from both sides and makes a final, legally binding decision on all remaining issues. During the trial, each lawyer presents their case by calling witnesses to testify and introducing documents and other evidence. The judge, acting as the final decision-maker, will listen to all the testimony and review all the evidence to make a final ruling.
Final Order: A Legally Binding Conclusion
Once the judge has made a final ruling on all issues, the divorce is formalized in a final order. This comprehensive document details all the terms of the divorce, including the division of assets and debts, child custody and support arrangements, and any spousal support obligations. It is a legally binding order that must be followed by both parties.
Post-Trial Motions And Appeals: A Chance for Review
For a party who is dissatisfied with the trial court’s final decision, there is the possibility of a post-trial motion or an appeal. A post-trial motion points out to the trial judge the flaws and mistakes in the application of law, reasoning or misunderstanding of facts. An appeal is a request to a higher court to review the trial court’s decision for legal or procedural errors. An appeal is not a new trial and does not introduce new evidence, whereas a post-trial motion might. An appeal focuses solely on whether the judge in the lower court made a mistake in applying the law. The appeals process is a separate legal journey and can be time-consuming and expensive.
The journey through a contested divorce is complex, but understanding these stages can help you feel more prepared and in control. At each step, the guidance of a knowledgeable family lawyer is essential to navigate the legal process and advocate for your rights and future.