The divorce process can vary depending on factors such as jurisdiction, complexity of issues, and whether the divorce is contested or uncontested. Consulting with a divorce attorney can provide personalized guidance through each step of the process.
Every divorce always involves four primary issues to be resolved:
When a couple has minor children, we also need to resolve the additional issues of custody, parenting time, and child support.
However, before a court can even consider a divorce case, let alone enter a final judgment divorcing the spouses, making decisions about their children, allocating their property, ordering support, and finalizing taxes, insurance, and attorney fee issues, it must have both subject matter and personal jurisdiction over the spouses and the divorce case itself.
If residency or personal jurisdiction is a problem, it is best to talk to a lawyer about your specific circumstances to see if you meet the six-month residency and ten-day venue requirements and if the court has personal jurisdiction over your spouse.
“You have to learn the rules of the game. And then you have to play better than anyone else.”
–Albert Einstein
Depending on the circumstances in the case and the timing of the filing, there may be significant advantages to being the plaintiff or the defendant. The manner in which the complaint is served also can have a significant impact on how the case proceeds after that.
In certain situations, those temporary orders can be entered by the court ex parte, which means they are issues immediately when the case is filed, even before the responding spouse has been notified of the proceeding or an opportunity to respond to the allegations. An important example of when an ex parte order might be issued by a family court is where there has been domestic violence or abuse; in those cases, a court might issue an ex parte custody order and a personal protection order (barring the other spouse from entering the home or having contact with the filing spouse or children), even before the responding spouse has been notified of the proceedings.
If the parties cannot resolve these temporary issues by agreement, the court will hold a hearing and issue orders that remain in effect while the case is pending, usually lasting until the case has been finalized.
With these documents in mind, the discovery process will include fact-finding into the following issues:
In an initial interview with a prospective client, an attorney will ask financially-oriented questions is to gain a rudimentary and preliminary understanding of the client’s net worth, income, and expenses/lifestyle, so that the attorney can assess how a court may handle the issues of property division, child support, and spousal support. From that initial overview, the attorney then can begin to use the available discovery find missing information and complete the financial picture. The initial meeting also will enable the attorney to make an initial assessment about separate property claims arising from premarital assets, assets received as gifts, and inherited assets. These questions may focus on each spouse’s contributions to the acquisition, maintenance, and improvement of various assets, title to various assets, and the possible commingling of various assets. If there is a prenuptial agreement or a postnuptial agreement, the attorney will need to ask questions designed to assess the validity and potential enforceability of the agreement. (These questions usually focus on the financial disclosure made incident to the execution of the document, when the document was signed in relation to the date of the marriage, the circumstances surrounding the execution of the document, changes in circumstances that may have occurred since the execution of the document, among numerous other related questions.)
Ultimately, specific information will be gathered from a review of personal and business income tax returns and financial statements, real estate appraisals, mortgages, bank statements, personal and business check registers, brokerage accounts, retirement accounts/benefits, and credit card statements, all of which the attorney will obtain — either from the client, by formal means under the court rules, or by informal private investigations — during the divorce discovery process. Sometimes, attorneys will employ accountants, psychologists, appraisers, forensic experts, and business valuation experts to value business interests and determine disposable income and net cash flow.
How a settlement agreement is drafted is critically important, because when an asset is titled in the other spouse’s name, ensuring that the asset is transferred properly, without creating unintended tax consequences, requires careful thought. Equally important is making sure that all of the necessary steps in an asset (or debt) transfer are required to be taken, with built-in consequences if they are not. It is not helpful to have an agreement that simply says an opposing spouse must do something, without a built-in remedy if that spouse later decides not to cooperate.
Achieving a settlement requires careful planning and development of the right leverage to make sure that the opposing spouse wants to settle, rather than going to trial.
During a contested trial, the attorneys for each spouse present their facts and interpretations of the law to the court through trial briefs, witness testimony, and evidence. The judge then decides the issues between the spouses. When a party is dissatisfied with the result of a trial, that party has the right to appeal the decision of the trial court. Sometimes, appeals can take more than two years.
The information contained within this website is intended for informational purposes only, and is not legal advice. Nothing in this website establishes an attorney-client relationship. Different facts can radically alter a legal opinion. You privately should consult an attorney for legal advice that pertains to your specific and unique situation.
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