While divorce is the end of a relationship of the heart, it’s also the dissolution of a serious legal contract that could have many implications on your future. Unfortunately, while navigating this emotionally volatile time, you must still keep a calm head so you can make sound legal decisions for your future. Being well-informed and knowing what to expect when you file for divorce can help you maintain a sense of calm and prepare you for what lies ahead.
First Things First – Making the Decision to Divorce
Filing for divorce is never an easy decision. Most couples spend a lot of time and reflection determining whether it’s the best course of action.
For some, separation can serve as an intermediate step before filing for divorce, allowing you and your spouse to live apart while considering the future of your marriage. Some states even require a period of separation before you can file for divorce. It’s important to understand your particular state’s requirements regarding separation before you file for divorce.
Because you are still legally married while separated, establishing a written separation agreement will clarify both your and your spouse’s rights and responsibilities while you’re apart. Your separation agreement should include
- Who has primary custody of your children, and how you will share visitation
- Who will pay child support, and how much
- How you will divide your assets and debts until a final divorce decision is made
- Who will live in the family home
- Whether one party will need spousal support while you are separated
and many other issues that could surface pending final divorce decisions. A formal separation agreement can prevent disputes from arising and provide stability while you navigate the rest of the process.
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Things to Do Before Filing for Divorce
Before filing for divorce, there are some preliminary steps you’ll need to take to comply with state legal requirements.
Meeting Residency Requirements
Before you can file for divorce, you must first meet your jurisdiction’s residency requirements. Most states have residency requirements that ensure the court has the legal authority to oversee your divorce. Depending on the state where you are filing, residency requirements can range from a few weeks to a year. Some states also have county-specific requirements, so verifying the rules where you will be filing is important.
Understanding the Grounds for Your Divorce
“Grounds” is the legally recognized reason for your divorce.
Fault-based grounds hold one spouse “at fault” for the breakdown of the marriage, such as adultery, cruelty, or abandonment. In contrast, no-fault grounds don’t require proof of fault, merely citing irreconcilable differences or the irretrievable breakdown of the marriage. Some states offer fault-based grounds and no-fault options, whereas others are true no-fault divorce states.
It is important to remember if you are considering filing for divorce using fault-based grounds, you must have clear proof of any accusation of marital misconduct to submit to the court. While filing for divorce based on fault-based grounds does have some advantages, you will want to understand the benefits and disadvantages before you file.
Understanding the Type of Divorce You Are Seeking
If you and your spouse agree to the grounds and all the terms of your divorce, you are seeking an uncontested divorce.
Conversely, a contested divorce is where you and your spouse are at significant odds over the terms of your divorce. To come to an agreement, you may require mediation or negotiation, or a judge may need to make the final decisions for you.
When you are first filing for divorce, you don’t have to choose between a contested or uncontested divorce, but it’s important to remember that the more disagreement, the more contentious and costly your divorce is likely to be.
Consulting an Attorney
While it’s possible to file for divorce without legal representation, consulting an attorney early in the process will help you understand your legal rights and responsibilities, negotiate terms in your best interests, and prepare you for litigation, if necessary. Especially if you’re pursuing a divorce based on fault-based grounds or your divorce is likely to be complex or contentious, an experienced family law attorney will guide negotiations, ensure evidence is presented to the court effectively, and protect your interests and legal rights throughout the divorce process.
What Needs to Be Agreed Upon Before Your Divorce Can Become Final?
Before your divorce can be finalized, many issues must be agreed upon. If you can’t come to an agreement on your own, the court will have to make these decisions for you.
Property Division
Dividing your marital assets and debts is one of the more significant aspects of a divorce. This includes anything you and your spouse have acquired while you are married. Depending on the state where you file, property division usually takes one of two approaches:
- Community property – The assets and debts you’ve acquired during your marriage will be split equally.
- Equitable distribution – The assets and debts you’ve acquired during your marriage will be divided fairly but not equally. Equitable distribution states consider many factors in determining “equitability,” such as the length of your marriage, contributions each of you made to the marriage, income, future financial needs, and other factors the court may deem relevant.
Child Custody and Visitation
If you and your spouse have minor children, child custody and visitation will be critical decisions. The court system prioritizes what is in the best interests of the child when making custody decisions, taking into consideration
- Each parent’s ability to provide a safe and stable environment
- The child’s relationship with each parent
- Who has been the child’s primary caretaker up until this point
- The child’s physical and emotional needs
While courts believe some form of joint custody is usually in the best interests of the child, sole custody may be ordered if one parent’s influence has been proven detrimental to the child’s best interests. Even then, courts will usually order some type of supervised visitation.
Child Support
Child support ensures that both you and your spouse contribute financially to your children’s upbringing. Child support is typically calculated by state guidelines that consider
- Both parents’ income
- The number of children requiring support
- Custody arrangements and the amount of time each parent spends with the child
- The child’s specific needs, including healthcare, education, and extracurricular activities.
State support guidelines are designed to ensure consistency and fairness across child support cases. However, courts can deviate from them in unique financial situations or in special needs cases.
Spousal Support (Alimony)
Spousal support or alimony may be awarded to a lower-earning spouse to help maintain financial stability, but it is not a given like child support. Spousal support rules can vary significantly from state to state, and courts have a great deal of discretion over awards. When making alimony decisions, the court will usually consider
- The length of the marriage
- Each spouse’s earning capacity
- Contributions each spouse has made to the marriage, including homemaking or supporting the other spouse’s career
- The standard of living that was enjoyed during the marriage
Depending on the state, spousal support can be temporary or permanent.
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Step-By-Step Filing For Divorce
Whether your situation is amicable or highly contentious, the legal steps involved in ending a marriage are designed to ensure fairness and clarity for both spouses. From filing the initial paperwork to resolving disputes, every stage can play a critical role in shaping the final outcome of your divorce case.
Filing the Petition
The first step in any divorce is filing the legal document known as the petition for divorce. The petition is the formal request asking the court to dissolve your marriage. It will be filed at your local family court and may require filing fees and other supporting paperwork, depending on the jurisdiction. If you are the person filling, you are legally referred to as the petitioner.
The petition will outline your reason for the divorce and your proposed terms, including how you would like issues regarding your property division, child custody and support, and spousal support resolved. While this doesn’t mean these will be granted, the petition is the starting point for negotiation and resolution.
Serving the Other Spouse
After you have filed the petition, the next step will be to “serve” your spouse, or formally notify them and provide them a copy of the petition. Serving the other spouse is a legal requirement that ensures they are aware of your intention to divorce and gives them the opportunity to respond. The most common methods of service are
- Using a professional process service to deliver the paperwork to your spouse
- Using the local sheriff’s office to deliver the paperwork
- Sending the documents by certified mail, requiring your spouse to sign for the delivery
Once your spouse is served, the process server or sheriff will provide proof of service that confirms delivery. If your spouse can’t be located or refuses to accept the paperwork, you may need to request permission from the court to use alternative methods.
The Response
After being served, your spouse becomes the respondent in your divorce case. They must respond to your petition within a specific timeframe which can vary depending on your jurisdiction. This clock begins ticking the moment they receive the paperwork.
The response, or answer, allows your spouse to agree or disagree with the terms of the divorce you have proposed. Your spouse will have three options:
- Agree with the grounds and terms you’ve outlined in the petition, making your divorce uncontested so you can proceed more smoothly with little court intervention
- Disagree with specific terms and outline their own requests regarding these terms
- File a counterclaim or cross-petition outlining their own grounds or terms requests
Your spouse’s answer will set the tone for the rest of the process. If the response does not agree with the petition, your divorce becomes contested and moves into other legal processes requiring negotiation, hearings, or a court trial to resolve your disagreements.
If your spouse doesn’t respond within the legally designated time, the court could issue a default judgment in your favor. However, your spouse could file a motion later to overturn the judgment for specific reasons.
The Importance of Temporary Orders
Divorce can be a lengthy process that could take months or even years to resolve. In the meantime, life continues and bills need to be paid, housing and other responsibilities need to be met, and your children will need financial support and structure and stability.
Either spouse can file a motion with the court requesting temporary orders that outline each party’s responsibilities until the divorce is final. Temporary orders can address
- Custody arrangements
- Child support
- Spousal support
- Who stays in the marital home
- How expenses will be divided
- How shared assets can be used
Furthermore, the court can issue restraining orders to protect you or your children if there are issues of harassment or abuse.
The court will schedule a hearing where you and your spouse present your arguments. The judge will decide what arrangements are fair and necessary given the circumstances and evidence and issue temporary orders that will remain in effect until your divorce is finalized.
Negotiation or Mediation
In many divorces, going to court isn’t the first – or even the best – option for resolving disagreements. Instead, you and your spouse may first opt for negotiation between you and your attorneys or mediation with an experienced divorce mediator before heading to court.
Mediation is a structured process where you and your spouse work with a neutral third party – the mediator – to work through their disagreements. The mediator does not represent either party but attempts to guide you to mutually acceptable solutions. Mediation can work well if both parties understand their legal rights and there is an equitable balance of power in the relationship.
You can also negotiate the terms of your divorce with or without attorneys. However, an experienced family law attorney will direct you toward finding common ground while focusing on your best interests and protecting your legal rights. If an agreement is reached, the terms will be documented through a settlement agreement and then submitted to the court for approval. If approved, the settlement agreement is incorporated into the final divorce decree and becomes legally binding.
The Discovery Process
The discovery process will come into play if you and your spouse can’t reach agreements regarding your property division, child custody, or alimony through negotiation, and your case is headed to trial. The discovery phase allows you and your spouse to obtain relevant information from each other to build your case before going to court. Discovery helps ensure that all details are on the table so decisions can be based on fact.
Common tools that your attorney may use during discovery include:
- Interrogatories, or written questions posed from one spouse to another that must be answered under oath
- Formal requests for production asking for documents and records relevant to the case, such as bank statements, tax returns, communication logs, or other records that could potentially uncover discrepancies
- Depositions, or in-person interviews where one spouse answers questions under oath
Discovery ensures that both spouses have access to relevant information, allowing each side to collect evidence to support their claims. Furthermore, revealing each side’s strengths and weaknesses can motivate both sides to reach a settlement instead of proceeding to a time-consuming and costly trial.
Preparing for Trial
While a trial can be time-consuming and costly, it is sometimes the only way to resolve deeply contentious issues.
During the trial, you and your spouse will be able to present your case to the court, submit evidence, and call witnesses to testify on your behalf. Your attorney will play a critical role by presenting opening and closing statements, cross-examining witnesses to challenge your spouse’s evidence, and arguing the merits of your position to convince the judge to rule in your favor.
In most divorce trials, a judge is the sole decision-maker and issues a final ruling based on the evidence and testimony presented. This ruling becomes legally binding and serves as the foundation for the final divorce decree. Once the decree is issued, the divorce is considered legally complete and both parties must follow its terms.
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The Importance of Legal Representation
Going through a divorce is not only emotionally overwhelming but legally complex. While navigating a divorce without a lawyer is possible, having an experienced family law attorney can make a significant difference in the outcome of your case.
- Divorce laws can be complicated. Your attorney will explain your rights and responsibilities under these laws, ensuring you make decisions in your best interests.
- Decisions you make during the divorce process will impact your financial stability, parenting arrangements, and overall future. Your attorney will advocate for you, ensuring you get a fair share of your marital property, custody arrangements that reflect the best interests of your children, and child and spousal support that is fair and reasonable.
- Because most divorces are resolved before they get to trial, an experienced family law attorney can propose and negotiate creative solutions that can help you reach agreements that meet both sides’ needs, avoiding costly litigation.
- If your divorce involves complicated assets, contentious child custody disputes, or other complex family law matters, your attorney will work with industry experts to present critical evidence in court to support your case and ensure a fair outcome.
- Because it is difficult to make level-headed decisions during emotionally overwhelming times, your attorney can provide objective advice and guidance to help you focus on the big picture instead of being swayed by short-term emotions.
Divorce isn’t just about resolving legal disputes. It is also about navigating some of the most difficult moments of your life. At Melone Hatley, P.C., our skilled family law attorneys will be your dedicated partners throughout the entire divorce process. With convenient locations throughout Virginia as well as Charlotte, NC, Tampa, FL, and Columbia, SC, we are committed to providing you legally sound and compassionate guidance through these emotionally difficult times. Call us at (877) 462-0624 or reach out through our contact form to schedule a no-cost consultation with one of our client services coordinators.
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