A STEP-BY-STEP GUIDE TO WHAT HAPPENS IN DIVORCE
Wishing you had a road map for your divorce? This article gives you the procedural basics. For purposes of this primer, we’ll assume the divorce case (called an action) is initiated by you. In legal terms, that means you are the plaintiff and your spouse the defendant. Each of you is a party.
Summons and Complaint. These documents commence the action. The Summons tells your spouse s/he is required to appear in court. The Complaint tells him/her why. At this stage neither you nor your spouse actually goes to court.
Answer. Your spouse responds to the Complaint within twenty (20) days.
Reply. If your spouse’s Answer raises subjects that were not included in your Complaint, you have the right to respond to the new subjects.
Request for temporary relief. If one party is legally entitled to monetary support in the form of either temporary maintenance or child support from the other while the action is pending, this is sometimes available simply by requesting it. If temporary maintenance or child support is not voluntarily forthcoming, it will be necessary to file with the court a motion pendente lite (“pen-den-tay lee-tay”, Latin for “during the pendency of the litigation”) so the spouse entitled to temporary maintenance or child support has money to live on until the divorce is final, at which time post-divorce maintenance and child support may be awarded by the court.
Settlement, maybe. If it is not necessary for you to make a pendente lite motion and if you have enough financial information, this may be an opportune time to advance a settlement proposal to resolve the case. If you and your spouse, with help from your lawyers, can negotiate mutually acceptable settlement terms, the lawyers can draft papers reflecting your agreement. These papers are then filed with the court. A separate set of papers called the Findings of Fact and Conclusions of Law and Judgment of Divorce, along with several other required forms are also drafted and submitted to the court for signature. The divorce becomes final in 6-8 weeks (this time period varies from county to county). If you succeed in negotiating a settlement, skip to Step 14 below.
If motion, then court. If a pendente lite motion must be made, you’ll be in court. Motion procedure is similar to the Complaint and Answer: the motion is made, answered, and replied to if appropriate. Sometimes with the answer a cross-motion is filed; the same procedure applies to the cross-motion. If the motion is not resolved by the parties, the court will decide the motion (and cross-motion, if applicable).
Preliminary Conference Order. At the first court appearance, the parties and their lawyers sign a Preliminary Conference Order setting deadlines for exchanging financial information, arranging for valuation of any real estate and business assets involved in the divorce, and conducting other pre-trial work such as depositions and interrogatories (these are ways to inquire and obtain information that will be needed for trial but is not yet known, including information from expert witnesses).
Note of Issue. Work under the pre-conference order may take a few months or a few years. During this time there will be periodic court appearances for the parties and their lawyers. When everything is done that needs to be done in order for the trial to go forward, a Note of Issue is filed with the court indicating that the case is ready for trial.
Pre-trial conference. There is one final court appearance before a trial date is set by the court. At this time the judge will normally attempt to settle the case, or at least narrow the issues for trial. The trial date may be weeks or months away.
Trial preparation. This is extensive, expensive work. Your attorney will need your help and assistance to prepare your testimony and that of the other necessary witnesses.
Trial. Trial generally takes between one and five days, depending on the number and complexity of issues to be tried.
Decision and Order. Based on all the evidence, the court writes its legal Decision regarding the division of property and/or other matters that were not resolved before or during trial. The Decision tells you the substantive outcomes in your divorce. It is usually available within 6-8 weeks and is accompanied by the court’s Order that it be implemented. However, though the Decision and Order are final substantively, you are still not divorced.
Findings of Fact, Conclusions of Law, Judgment. The Order and Decision are not self-executing. Because legal outcomes are based on the facts of any particular case, your lawyer or your spouse’s lawyer drafts Findings of Facts and Conclusions of Law and the court’s final Judgment of Divorce, all of which are submitted to the court for the judge’s signature.
Divorce is final. When the judge signs the Findings of Facts and Conclusions of Law and the Judgment of Divorce, your divorce is final.
Post-divorce housekeeping. If your divorce involves division of a pension, a Qualified Domestic Relations Order, or QDRO, will usually be required to affect this. The QDRO may be drafted by your lawyer or by a specialist; your lawyer will tell you if s/he does this specialized work and if not will suggest a specialist. You may also want to change (or make) your will. Your lawyer may give you a “punch list” of tasks for you and your ex to complete so as to comply with court order or with applicable settlement documents.
The big picture. Obviously, no general reference such as this can cover all the bases. Things happen. This is a big-picture outline of what you can expect. Negotiating usually occurs throughout the process, as most divorce lawyers try to avoid trial because it is expensive, time-consuming and emotionally draining for clients. The time required to divorce can be as few as 6 months or as many as 3 years, depending on the complexity of your case and the reasonableness of the parties and their lawyers.
Finally, children. This post does not cover child custody issues; those are a blog in and of themselves. Just know that if you have children, they may have their own attorney, who you and/or your spouse may have to pay for and who will participate in all court appearances.
