Back to Basics: I filed for divorce, what now?
For the vast majority of people, being involved in a court case and all that it entails is quite stressful. At the outset of a case, many clients feel like they are standing at the entrance of an impossible maze filled with terrifying unknowns and terrible surprises waiting to trip them up and prevent them from reaching the calm at the end.
Unfortunately, law school does not equip students with crystal balls and most attorneys don’t have the time to hone their fortune telling abilities, so no attorney will be able to make guarantees about the outcome of your case. However, most people feel less stressed, and maybe a little reassured, just by verbally walking through the process of a divorce case. In this installment, we will take a brief walk through the logistics of a divorce case.
Parties who have been married for a relatively short period of time, have not commingled assets, have not made martial purchases, have no children, and (by some miracle) have amicably decided that a divorce is the best path for both will have the most basic divorce of all. One party will file a complaint for divorce which states the required information and the grounds on which a divorce is being sought.* The opposing party will file an answer in which they will either admit or deny each of the statements made in the complaint. Though not required, many times the opposing party will deny the listed grounds for divorce and file a counterclaim. In the counterclaim they will state that they should be granted the divorce and list the grounds on which they are basing their claim. The original party will then file an answer to the counterclaim and usually deny the grounds for divorce. Theses initial filings get the case into court and provide the posture the parties need in case one party decides they do not want a divorce or that there are assets and debts to be divided.
Next, if the parties are still in agreement, they will discuss, draft, and sign a decree to be entered by the court. The decree will state that the party who is “taking the divorce” has grounds, that the opposing party does not deny the grounds, that the opposing party withdraws their complaint/counterclaim, and that all property and debt rights have been settled. As was discussed in the last post, after the testimony of the party “taking the divorce” and their witness, the judge will sign off on the decree and your case will be concluded.
Most people, unfortunately, will not have such a simple case. If you have been married for some time, have assets that you acquired prior to your marriage, have lots of assets acquired during your marriage, have debts that were acquired during the marriage, have children, and/or you or your spouse don’t want to get divorced then you will have some intermediate steps in the process.
After the complaint, counterclaims, and answers you and your attorney will need to begin the process of discovery. Discovery is a phase in which you find out if your spouse has assets or debts you don’t know about, what assets and debts are marital and which ones belong to one party or the other, if your spouse has the ability to have custody of any children, what your spouse is trying to get out of the divorce, why they feel they are entitled to a divorce, whether they are seeking joint/full custody, who are the witnesses that they intend to call if the case proceeds to trial, etc. Some people feel that they are familiar enough with their spouse that they can forego this process. However, many times client’s find out that there is much they don’t know and, if a case is likely to proceed to trial, it is imperative for your attorney’s preparation of your case.
Discovery can be an extensive process and methods in which your attorney might conduct discovery include interrogatories, requests for production, taking depositions, requests for admissions, or the issuance of subpoenas. Interrogatories are merely written questions which the opposing party answers and swears that their answers are true. Requests for production are written requests asking the opposing party to provide documents, such as bank statements, other account statements, leases, mortgages, medical records, or any other discoverable evidentiary document relevant to the case. Requests for admissions are written statements which one party asks the other to either admit or deny. A deposition is in person sworn testimony taken outside of court. And, finally, a subpoena is an order for a third party to either provide documents or appear to be a witness at trial or deposition.
After discovery is completed, the parties will attempt to negotiate a settlement which encompasses all aspects of the case. If a settlement is not achieved for all issues, those issues which the parties agree upon can be settled, and the remainder can go to trial. At trial, the judge will hear the evidence and settle any property, debt, or custody issues.
Hopefully the above has given you a general feel for the process of a divorce case and it is less mysterious and daunting than it may originally seem.
The above should not be considered legal advice and there is no substitute for counsel of a qualified attorney.
If you would like to schedule an appointment to meet with one of our attorneys regarding divorce, or another area of family law, please call 501-296-9999 for a free consultation.
This article was written by the Tripcony May Team.