Making The Decision To Divorce
This first step is an emotional one. It is the step we all have to take when coming to the decision to divorce. The first thing you should ask yourself is whether you really want a divorce. Next, you should make sure that you have done all you can to try to solve the problems in your marriage and salvage the relationship with your spouse.
If you have children you are morally obligated to do all you can to save your marriage. Divorce is not a decision to make lightly, it is not a decision that you make when feeling overly stressed and it is not a decision to make if you are dealing with depression. Anyone thinking about divorce should first seek couples counseling, talk to your clergy, talk to your spouse about the problems as you see them and be willing to work at saving your marriage before walking away from the marriage.
We live in a throwaway society. We have become people who quit when the going gets tough. Unless you are suffering abuse or serial infidelity the commitment you made to your spouse and marriage should be the most important thing in your life. It should be the thing you work hardest to maintain.
Do You Or Don't You Hire An Attorney?
If, after working to save the marriage, you decide divorce is the way to go, you will need to decide whether or not to hire a divorce attorney. Most divorces are complicated due to the need to handle such issues as child custody, child support, property division and spousal support. For those reasons, anyone with the financial means should hire an attorney so they can be assured that their legal rights are protected.
If you are not able to afford an attorney, you can go to court as a Pro Se litigant and obtain your divorce without an attorney. If you decide to go Pro Se, contact your local court clerk and ask for any information such as a checklist and procedures for filing the original petition for divorce. Whether you hire an attorney or represent yourself, you should study and familiarize yourself with your state’s divorce laws.
Once you’ve come to the decision to divorce, you need to start gathering documentation that will be needed during the divorce process. Whether you use an attorney or go the Pro Se route, the following is a list of all documents that you need to have:
- Full addresses, phone numbers, and social security numbers of both spouses.
- Full names, birth dates, social security numbers, and addresses of all children of the marriage, and their schools and grades.
- The date and county of the marriage.
- Information about any prior marriage of either spouse, including a certified copy of the divorce decree.
- A copy of any domestic contracts (e.g., a prenuptial agreement).
- Information about any previous legal proceedings between the spouses or involving any of the children (e.g., restraining orders, domestic violence orders).
- Dates and particulars about any previous separations, attempts at reconciliation, or marriage counseling.
- Your previous three year's income tax return, and any related data from the IRS.
- Information about your current income, copies of pay stubs, and financial records for any businesses you or your spouse owns.
- A list of substantial assets and liabilities of both spouses.
- Copies of any applications for credit, such as mortgage applications which often contain a wealth of helpful information.
- Copies of bank account numbers and statements, either joint or separate to include checking and savings.
Be sure to keep the originals of all documents and give your attorney copies. You should always have in your possession a copy or the original of every document you give your attorney.
The Separation Agreement
Once you and your spouse separate you will want to draw up a separation agreement. Some states recognize legal separation, some don’t. If your state recognizes legal separation, your attorney or court clerk will be able to advise you and help you set up an agreement. If your state does not recognize legal separation, you will want your attorney to file a petition for an interim order.
An interim order from the court sets out covers issues such as child support, custody, visitation and who pays what and when. The legal separation agreement and interim order are put in place to protect all parties to the divorce between the time you separate and the divorce becomes final.
Be warned that an interim order or separation agreement can and most of the time does influence the final divorce settlement agreement. In other words, do not agree to anything in the separation agreement or interim agreement unless you feel you can live with it once the divorce is final.
If, during the negotiating phase of your divorce, you and your spouse end up in court, a judge is likely to use your separation agreement as a guideline when making their decision about your final agreement. So make sure that your separation agreement or interim agreement are as close as possible to what you hope to walk away with once the divorce is final.
Filing The Original Petition For Divorce
Normally the original petition of divorce is filed before a separation agreement is drawn up. It all depends on which state you file in and that state’s rules for civil procedure. Whether filing your petition comes before or after, it will eventually happen and there are things you need to know about how it is filed and what it contains.
When you file the original petition the divorce action begins once a summons is served upon your spouse. Depending on what state you live in your spouse will have a certain number of days to respond to the summons for divorce. Once there is a response, the ball starts rolling.
The original petition that you file will briefly state the grounds upon which the divorce is sought and a brief outline of what you are seeking in the divorce (the house, the cars, joint custody, child support and so on). If you are a Pro Se litigant and filing an original petition without legal assistance, it is imperative that all emotions be kept out of the document. The petition is strictly about the grounds and what you wish to walk away with. The judge who will read the petition is not interested in how you feel about the divorce or whatever wrongs you feel your spouse has done. Keep it short and to the point!
Navigating The Divorce Discovery Process
After the original petition for divorce is filed and before you go to court, you will have to make your way through the discovery process. Please understand that discovery only takes place if the divorce is being contested or you and your spouse are unable to come to a meeting of the mind during settlement negotiations.
If you have been unable to treat each other with respect and honesty there is no better time to begin than during the discovery process. This is the phase of your divorce that will cost you the most financially and emotionally. So, to save money and the stress generated by a long drawn out battle, show all the integrity you can during this phase of the divorce process.
Dividing Marital Property
Once you’ve handed over proof of income, proof of debt and proof of all owned and acquired during the marriage, you will begin the process of dividing property. As you may already know, property is classified as either marital or non-marital property. How property is divided depends on the state you reside in. Most states divide property equitably but that are some states that are community property states.
Things that are taken into consideration are whether the property was obtained before the marriage or during the marriage and whether the property was given as an inheritance or a gift to one of the spouses. If spousal support or division of retirement benefits is an issue you will also need to take into consideration the future earning potential of each spouse, any tax consequences and of course whether or not there was a prenuptial agreement.
Will you be able to settle or will you end up in divorce court? The only reason a divorcing couple ends up in divorce court is because one or the other refuses to negotiate, to be flexible and come to an agreement with the other. Ninety five percent of all divorces are settled outside court. That is an encouraging statistic but it needs to be known that the other 5% are the ones that keep the Family Court System working over time.
It is that 5% that tend to go back to court repeatedly. At times over frivolous issues that could be solved if both parties would make the choice to respond to the situation in a rational manner. It has been my experience when working with clients that the underlying issue with people who are continually going back to court is the need to get even with their ex-spouse.
There is either the spouse who refuses to follow through on an agreement in an attempt to get back at their ex-spouse or the spouse who withholds child visitation in an attempt to get back at an ex-spouse. They use the Family Court System to keep from having to deal with each other and to keep from having to accept responsibility for the role they play in the ongoing conflict with their ex-spouse.
In other words, they keep a legal system backlogged because they have emotional issues that need to be dealt with. So, here is some advice from me, if your ex pushes your buttons emotionally, get thee to a therapist’s office, not an attorney’s office.
Moving On After Divorce
Lastly, but most important, is the act of moving on after your divorce. Whether you find you have to work through all these steps are just a few, you will eventually need to put your marriage behind you and move on to a new life.
How successful you are will depend on how well you were able to deal with the stress generated by your divorce. How you handle any conflict and anger, you felt before, during, and after your divorce plays a huge role in the kind of life you will live after your divorce is final.
Some of the issues you will face as a single person are learning to budget money, possibly returning to the job force after a long absence, or healing the pain of an unwanted divorce. Whatever issues come up during separation and divorce, moving on and putting it all behind you depends on your attitude and how much work you are willing to do when it comes to rebuilding your life.