Filing a Petition
The opening legal salvo in the divorce is the filing of a petition.
This is simply a one-page or two-page form on which one party (or his or her lawyer) writes information like name and address and requests a divorce.
Sometimes, the form asks for the reason for the divorce. But the reason given is typically a standard phrase like “irreconcilable differences.”
The form is then usually hand-carried to the clerk of the relevant courthouse. (This is typically the courthouse in the county where the person filing the petition for divorce lives.)
There is nothing irrevocable about this; the filing may be “withdrawn.” But a filing is an important step emotionally. Most people don’t file a petition until they are really ready to get divorced.
Petitions typically give a limited amount of time, such as 30 days, for the other party to line up a lawyer and file a response.
Some strategists think it is best to be the one who files the petition.
Advantages of Being First To File
In general, it really does not matter who files the petition for divorce.
But here are the reasons given for wanting to be first:
- Psychological advantage. In the “eyes of the world,” you can claim that you were the one who filed for divorce.
- Temporary custody. Occasionally, a first filer will get sole temporary custody without giving the other side an opportunity to appear and argue his case. The way this happens is that this party, often the woman, claims that her husband is abusing her and the children. The judge has no way of knowing whether this is true. In order to be safe, the judge grants immediate temporary custody to the mother, without giving the father an opportunity to come into court and be heard. But this is rare.
- Lead time. After the filing, the other party has a limited amount of time to file a response (which is basically an acknowledgement of the petition). If you are first to file, this may mean that you had more time to interview lawyers and find one you like.
Serving a Summons
A summons is simply a piece of paper that informs someone about a court action.
In a divorce, a summons is a piece of paper that informs one spouse that the other spouse has filed for divorce. The delivery of this piece of paper is called the “serving” of the summons.
Sometimes, a spouse goes to the other spouse’s lawyer’s office to pick it up. Sometimes a representative of the court system hand delivers it. Sometimes it is mailed out.
The key thing, from the perspective of the court system, is that the other spouse have formal notification of the divorce filing.
Filing a Response
A response is a piece of paper that says, in essence, “I know a divorce procedure has begun.”
Usually, a person’s lawyer prepares the response.
Occasionally, the response will claim that the divorce procedure should take place in another state. This is called “contesting the jurisdiction of the court.”
Next comes the filing of motions.
A motion is a request that the judge who is supervising the case order something to happen immediately, before the trial, and before the parties negotiate all the issues. (Remember that actual trials rarely happen.)
Here are some motions commonly made:
- Motion for a protective order.
- Motion for a restraining order.
- Motion for alimony pendente lite.
- Motion for child support pendente lite.
Virtually anything a judge order in a motion can be undone by a later agreement of the parties. However, sometimes these orders set like wet concrete — and are as difficult to reshape.
“Discovery” is the process of getting information from your spouse, and from other people and companies.
The kind of information that is “discovered” includes:
- Financial documents, such as bank statements, pay stubs, and pension plan documents.
- Personal documents, like letters you may have written to each other, and letters you may have written to others.
- Other documents, such as report cards and medical reports.
- Discovery also includes recording what people say, including teachers, doctors, coaches, friends, and relatives.
Discovery by means of having a lawyer ask questions and having a paid professional note-taker (called a “court reporter”) record the answers is called a “deposition.”
Discovery by means of asking questions in writing and getting the answers back in writing is called “interrogatories.”
A hearing is any event at which the judge, one or more lawyers, and, optionally, one or both of the divorcing couple are present.
As a result of a hearing, the judge makes a decision of some kind, which is called an “order.”
A temporary order is any decision by a judge that is to be in effect until the divorce process ends and a permanent decision is made.
The divorce process usually ends with a negotiated written agreement, and at this point, the temporary order’s effect is over.
Often, the written agreement has the same or similar terms as the temporary order.
If the parties have yet to come to an agreement, that’s when you have a pretrial hearing, where you meet the judge before the trial.
More often than not, after this process, the spouses and their attorneys reach a final agreement.
The trial is when your lawyer and your spouse’s lawyer get to present your arguments to the judge.
Most of it is an extremely dry presentation of numbers.
Since spousal betrayal or bickering is almost never a legal factor, the reasons for the divorce are almost never aired in the trial. You never have the “satisfaction” of complaining about your spouse in court “for the world to hear.”
If custody is an issue, the trial can feature a parade of friends, relatives, and psychologists, testifying about the availability, past care, and fitness of each parent.
Custody trials are almost always destructive for the child.
Also, they make it very difficult for the parents to coordinate amicably on visitation for the “losing” parent.
We recommend that you try to avoid going to trial if at all possible.
Judgment is the final decision of the judge after a trial.
The judge will rule on all the financial and custody issues on which the parties have not agreed.
The judge will not say who was “responsible” for the decline of the marriage or who was the “bad”, “irresponsible”, “over-ambitious”, or “spendthrift” spouse.
The judge will not reprimand either spouse. In this respect, a judgement is very unsatisfying.
Also, be aware that judges sometimes get it “wrong.” Here are the reasons why:
- No time. They do not have the time to get to understand the situation adequately.
- Poor representation. One spouse’s lawyer is much better than the other spouse’s.
- Bias. Some judges are biased in favor of women or in favor of men.
Lawyers are famous for saying things like, “If I bring the same case before five judges, I’m likely to get five different results.”
So going through a trial and waiting until judgement is really a gamble, no matter how “right” you are.
Finding a way to compromise and settle is really better, faster, cheaper, saner, and more likely to result in faster healing for all parties concerned.