Divorce
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Below is a chronological sequence that may help you better understand the standard divorce process. Your specific case will necessarily differ from the one outlined below. If you have some specific questions, or you need advice on your situation and would like to setup a free initial consultation, please submit the form below.
Separation.
Separation laws vary from state to state. Regardless of your states laws your conduct in this period can have a significant impact on the terms of your divorce. Let's assume that you and your spouse have reached a tentative agreement on the division of property and custody. You decide to separate and work out the particulars later. Once you leave the house, your spouse's desire to be separated may have been satisfied. This affords them the ability to make arbitrary settlement demands and delay the resolution of your divorce. Your staying could give you the leverage necessary to expedite the divorce. The more your spouse wants a divorce, the more concessions they are usually willing to make when it comes to community property and children.
Caution: If you believe there exists the possibility of physical violence you shouldn't risk you health for a strategic settlement move, you should remove yourself from any situation you consider to be dangerous.
Your leaving your house during separation may also have an impact on the custody the Court awards. If you leave your spouse and child(ren), it may be viewed as abandonment of your family, and the longer you stay gone the harder it will be to regain custody of your child(ren). Keep in mind that often the possession and access you and your spouse adopt during the separation is the possession the Court orders in the divorce decree. If you take weekend visitation, the Court will be likely to award weekend visitation. Similarly if you and your spouse share custody during the separation, the Court will be likely to award Joint Managing Conservatorship.
Without having a good reason, the Court doesn't like to change the status quo. That is why it's important if you want the marital residence and custody of your child(ren), that you try to adopt these things prior to asking the Court to order it.
Your financial stability during throughout the divorce process.
The easiest way to guarantee your financial stability, and to facilitate a reasonable settlement, is to take control of available community property and transfer it for your exclusive use. A joint savings or checking account is the most liquid asset for immediate financial needs. This shifts the burden of proving the money was a community asset to your spouse -- it is much easier for you to give away half of what you transferred than to argue for the Court to award you your half. Furthermore, transferring community funds may encourage your spouse accept reasonable settlement demands to expedite the divorce. Once again, the more your spouse wants a divorce, the more concessions they are usually willing to make when it comes to community property and children.
If most of the community assets are in your spouses name, it is critical to get into court as soon as possible and get Temporary Orders. The more financially needy you become, the more likely you are to agree to an unreasonable settlement. And the longer your spouse has sole access to community property, the easier it will be for them to create the appearance that those assets were their separate property.
Dating during the separation.
Typically casual dating won't affect the Court's division of property or the custody awarded. If you begin to spend considerable amounts of time with a new person, or if it comes out that you spent the night with this person in a hotel room, it may create an image of you as having questionable morals -- especially if child custody is a contested issue. Furthermore, if your dating makes your spouse upset or jealous it may also make them unreasonable. A vindictive spouse can quickly make a divorce an expensive and time consuming process. If it is possible to stay amicable and rational with your spouse throughout the process you will save yourself considerable headache and attorney's fees.
Starting the legal divorce process.
The filing of the petition for divorce legally begins the divorce. It is the document that asks the Court to legally dissolve your marriage. This document will be served on your spouse to tell them they are being divorced, regardless of whether or not they want to be. If your divorce is uncontested, your spouse may be willing to waive service to save the cost, and embarrassment, of having a private process server go to their office or home and physically hand them a copy of the petition and citation. After being served, if your spouse doesn't file an answer to your petition within the allotted time, your spouse will have waived their right to be present at trial, and to put on evidence, and after hearing your side of the story the Court will make its ruling.
You can file a petition for divorce on your own if you know the correct form and how to file it. Typically however, the judges and clerks frown on people representing themselves because you are expected to know all the correct legal procedures without their assistance.
Saving attorney's fees by having one lawyer represent you both.
Technically a lawyer would be conflicted if he represented both of you, since what's in your best interest may not be in theirs. However, this doesn't mean that if you hire one lawyer you have to pay for two. You and your spouse can hire a lawyer to draft the documents and you can both be present for all meetings with the lawyer, and you can even work out how you would like to divide the fees (lawyer humor).
Setting up a free initial consultation.
Click on Find a local military divorce lawyer in the left frame or submit the form below for a military divorce lawyer in your area.
Initial Client Information for the Consultation.
Ideally, at the consultation you should be prepared to describe the amount and value of your property and your monthly income and living expenses. If this information is not immediately available to you, it can be supplied later and your divorce does not need to be delayed. However, a lawyer can only advise you based on the information you supply them. The more incorrect or incomplete information you give your attorney, the more vague the advice. Clicking on the Download Divorce Pack will give you a questionnaire with the information your attorney will need, and can help expedite getting your divorce started. The information you supply a lawyer is confidential and protected under the attorney client privilege. Because of the confidential nature of the information you supply your attorney during the initial interview, that lawyer will probably be disqualified from representing your spouse in the divorce.
What to expect of your lawyer.
Your lawyer is your advocate and their job is to pursue your best interests at all times. Your lawyer should help you maintain perspective on what is a fair settlement. Your lawyer should always try to make the process as financially and emotionally easy as possible, this usually involves avoiding litigation if feasible.
Your lawyer at trial.
A good lawyer takes the path of least resistance, that means the easiest way to achieve your best interest is the way that you should pursue. However, if your spouse is being vindictive or unreasonable, your lawyer should be willing to exhaust all of the legal remedies available to you. At trial a lawyer's job is to get you a fair judgment and get you divorced.
Settling even when you're not worried about attorney's fees.
A settlement will only be agreed to by you and your attorney if it meets your needs. Judges and juries have a hard job of balancing the best interests of both parties and being fair and just at the same time, and sometimes they make the wrong decisions. An agreed divorce assures you that your needs are being met without leaving your divorce to chance. Also, settlement affords the attorney or attorneys the ability to get creative in tailoring your documents to your needs. Often there are tax consequences that can work for or against you based on the way your divorce is structured.
After the lawyer has been hired, the petition filed, and your spouse has been served:
Discovery
If property division or child custody is a contested issue, discovery is a valuable tool. Discovery is basically the process by which an attorney asks questions which your spouse is legally obligated to answer truthfully under penalty of the law. The lawyer can serve your spouse with interrogatories, requests for production, and admissions. Interrogatories can be questions like, "On what dates, and with whom, have you been in a hotel room." Request for production can be requests like, "Please give us a copy of your tax returns for the last ten years." Admissions can be statements like, "Please admit or deny you are the owner of a 1986 Porsche 911."
There are other types of discovery that can be utilized if appropriate in your situation. If you have additional questions regarding discovery contact us by filling out the form below.
Temporary Orders
Temporary orders usually act like a short term divorce decree. Temporary orders are the legally binding guidelines for you and your spouse until the Court can make its ruling in the final decree. They can specify who gets to reside in the marital residence, who can write checks on specific bank accounts, who gets the kids, etc. Temporary orders can also prevent a spouse from contacting you, spending or transferring money, leaving with the children, or almost any other action you can prove could be detrimental to you or your children. In a divorce you are entitled to have temporary orders issued with out your spouse being present that are valid for 14 days. After that you must legally give your spouse notice that there will be a trial on temporary orders.
If you and your spouse cannot agree on possession and access to your minor children you will have to get temporary orders. You have a right to be a parent to your children. If your spouse is currently refusing to let you see or contact your children; seek legal counsel. Do not attempt to force possession even if it is the fair thing to do. You can endanger yourself and your children, as well as jeopardize your right to custody in the future. If your spouse fails to abide by the temporary orders, they are in contempt and can be ordered to appear in Court. If they do not appear a bench warrant can be issued, and they will be taken into custody. At their contempt hearing they can be sentenced to jail, or can have assets taken to satisfy the Court's order.
Mediation
Usually, by the time all the events above have taken place, enough time has passed that both parties can agree on what is fair, and can settle their case before the expense of trial is incurred. Mediation can be a useful tool in fostering negotiations. Mediation is a half day or day long negotiation session that is heard by an impartial third party. Even though most mediators are lawyers, you should have a lawyer present because mediators are not permitted to give advice. After mediation if you and your spouse still cannot agree on a fair settlement, you will need to go to trial.
Trial
A trial is the forum for you to put on evidence that persuades the Court to make orders in your best interest, i.e. giving you the amount of community property you are entitled to and the type of custody that is in the best interest of the child(ren). This evidence usually consists of witness testimony and physical evidence. You can choose whether your case is heard before a judge and jury, or whether you will waive a jury and allow the judge to make these rulings. At the conclusion of the trial the Court will decide how your property is to be divided, award custody and visitation to the children, and make final rulings on any other issues, like name changes. These ruling will be incorporated into a final decree of divorce which the judge will then sign -- making it a legally enforceable document.
Post trial
There may be a few formalities to dispense with after the final decree is entered, for instance, if the community estate includes of a retirement savings plan, like a 401(k), then a special qualified domestic relations order will have to be entered to divide up money that isn't liquid.
Appeal.
If a ruling in your divorce is not a fair one, or new evidence has come to light, you may file a motion for a new trial, or begin an appeal. If you have children, the Court will have continuing jurisdiction over your children until they are eighteen or otherwise emancipated. You may go back and ask the Court to modify its decree and change child custody or child support for a variety of reasons.
General Guidelines
Divorce is an emotionally charged process; the following guidelines will make things easier on you, despite what your initial reaction may be.
- If you no longer love your spouse, substitute courtesy.
- Always be skeptical.
- Information is power; don't tell your spouse more than you need to.
- Walk away from heated arguments or conflict.
- Expect your spouse to resent your lawyer and attempt to undermine his influence.
- Do not enter private negotiations without your lawyer's knowledge and advice. The lawyer has a unique ability to play good cop/bad cop on your behalf.
- Don't make agreements or sign anything without talking to your lawyer first.
- When in conflict, trust your lawyer, not your spouse.
- Use your lawyer as a buffer, learn to say "talk to your lawyer and have him talk to mine."
- Don't rub in your legal victories. Losers try to even up.
A military divorce is usually a complicated matter with far reaching ramifications. Should you need additional information, or want to setup a free initial consultation with a qualified military attorney in your area, fill out the form below to get a response by e-mail.
After you have contacted Military Divorce Online, please download the following Word document, print it out, and then return it to us via mail. this will speed up the process. If you need an alternative file format, please state so and we will attach it to an email.
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