The Steps to Getting Divorced
When divorcing, it’s difficult to know what to expect. Divorce is a complicated process that can be full of frustrating delays and unpleasant surprises. An idea of what is going to happen when can make an uncomfortable time a little more predictable. Every divorce is different depending on your situation and also where you choose to get divorced, but the following timeline is a general overview of what steps will happen when.
1. To start the Divorce process, either you or your spouse obtains a lawyer who writes and files a Petition with the court also known as a Complaint for Divorce. This is a legal document that states why the spouse wants to divorce and how the spouse wants to resolve financial, custody, child support, and other issues.
2. The lawyer or the court makes sure that the petition/complaint is served on the other spouse, together with a summons that requires that spouse’s response. There are specific Rules on how this must be done.
3. Once the spouse receives the Petition, he or she has 30 days to file an Answer to the facts outlined in the Petition.
4. When the Court receives the Answer, the Court will send a notice requiring the parties to attend a Scheduling Conference where the various services are ordered depending on the contested issues. This is a ministerial proceeding where no evidence is heard and none is taken. If custody is disputed the Court may order some or all of the following services:
- Custody Mediation (ordered as long as no domestic violence)
- Co-Parenting Classes (always ordered)
- Custody Evaluation by Court’s Social Worker/ Home Study
- Alcohol/Drug Screening
- Psychological Evaluation
- Attorney for the Children
If property or spousal support is disputed the Court may order some or all of the following services:
- Property mediation
- Property valuation/appraisal
5. Early in the litigation, both sides will conduct discovery of facts and evidence from the other side. To do this, the parties exchanges documents and information on issues such as property and income by the dates specified by the Court at the Scheduling Conference. By examining this information, the couple and the court can decide how to divide up property and how to deal with child support and alimony and this information also facilitates in the settlement process because both sides (and both lawyers) have a much better idea of the evidence that will be presented at trial. A good lawyer will objectively weight the evidence and pursue a reasonable settlement.
6. A “Pendente Lite” (PL) hearing is typically scheduled within 3-4 months of the filing of the initial Complaint or 2-3 months after the Scheduling Conference. At the PL hearing, the Court can award temporary relief to either party on issues such as child custody, visitation, child support, alimony, attorney’s fees, litigation costs, maintenance of health insurance and use and possession of the family home.
7. Custody Mediation may be scheduled and typically occurs about 1 month before/during/after the Pendente Lite custody hearing. Mediation is conducted by a certified and trained mediator who may be a lawyer, therapist, or social worker. The mediator can help you both articulate your true concerns, what you really want for your child(ren), and get both sides to identify common interests in an effort to settle some or all of the child-related issues (legal custody, physical custody, child support, and child access schedules).
8. A Custody Hearing may be set for a few months after the Pendente Lite hearing to permanently resolve the issues related to the child (legal custody, physical custody, access schedule, child support, use and possession of the home).
9. The parties may reach a settlement at any time before the trial and the parties must attend a Settlement/Status Conference to help facilitate this process. A Settlement Conference occurs at the courthouse in a conference room and is presided over by a retired Judge of the Court. No evidence is heard and none is presented. The Retired Judge will listen to the positions of each side and offer insight or explanation. Nothing will be recorded and nothing will go on the record. All discussions are confidential since they are settlement discussions. If the parties settle, an agreement is put on the record and then typically there will be a 10 minute hearing to get the parties officially divorced. Different Counties handle this differently so it is important to discuss the precise procedure for your County with our attorneys.
10. If a settlement is reached outside of the Settlement Conference, the parties’ attorneys will draft a Settlement Agreement which is shown to a judge at Uncontested Divorce Hearing. The judge will ask a few basic factual questions and whether each party understands and chose to sign the agreement. If the judge approves the agreement, he or she gives the couple a Judgment of Absolute Divorce. This Order memorializes the terms of your agreement but it is binding and legally enforceable until or unless another Order supersedes it.
11. If all issues are not settled at the Settlement Conference, a trial will be scheduled for about 2 or 3 months later. In that time, our Office will prepare for trial using evidence and discovery collected – we will also continue to attempt reasonable settlement if the other side is open to it. At the trial both sides will present evidence (testimony, documents, experts, etc.) to prove the case. The Judge will decide all remaining disputed issues based only on the evidence presented. At this point, a divorce is granted and the terms of the Order will be final.
12. Either or both spouses can appeal a judge’s decision to a higher court. But it’s unusual for an appeals court to overturn a judge’s decision. Also, remember that settlements usually cannot be appealed if the case was resolved by Consent (agreement of both sides).
It’s hard to say how long all these steps will take in your case. The entire process can take from as little as a few months, to as long as two years, but most cases resolve in 11-14 months. Generally speaking, the more the couple can cooperate and agree to reasonable compromises, the smoother and faster the divorce will go.