With the current rate of divorce in the U.S., most people know several individuals who have been divorced and at least one who is currently going through the process. Let’s be frank from the start: if you’re reading this because you are experiencing a divorce yourself, you are certainly not alone. On any given day (except weekends and holidays, of course), thousands of people are requesting their local court to grant them a divorce. If you’re wondering what to expect when you or someone you know stands before a judge at divorce court, there are many resources and people who can help you navigate the often confusing legal processes and avoid those who might take advantage of your situation. This article will help identify where you may need assistance and what to expect throughout the process. Please note that this article will not discuss divorces involving child custody, as that adds significant complexity.
From the very beginning and at many points throughout the process, divorcing parties have opportunities to make the experience easier, cheaper, and less stressful. The key is to cooperate with the other party as much as possible. Easier said than done, right? In most cases, couples are seeking a divorce precisely because they cannot agree and cooperate. This paradox is a reality: divorcing couples who work together and ultimately reach an agreement on the terms of the divorce have a much smoother experience. For these couples, most states allow them to fill out all necessary forms from their state’s website, sign the papers in front of a notary, file them with the county clerk, and be granted a divorce within a month. Some states may require marriage counseling or a specified period of separation before filing, but from filing to divorce, the process is generally quick and painless.
This scenario is known as an uncontested divorce. A contested divorce occurs when one party disagrees with the terms proposed by the other, forcing the judge to make decisions regarding the details of the divorce. Since uncontested divorces are fairly straightforward, we will focus on contested divorces for the remainder of this article. Before we continue, let’s identify a few key terms and players involved in the court process:
- Petition: The document filed by one party requesting a divorce. The petition outlines the “relief” sought from the judge, including financial arrangements and division of marital property.
- Answer: Once a petition is filed, the other party must respond to the court regarding the terms of the original petition. There is a time limit for this response; if an answer is not provided in that timeframe, the terms of the original petition will likely be accepted automatically.
- Petitioner: The person who originally filed the motion for divorce. If the other party contests the divorce or specific details of the petition, the Petitioner also becomes the Counter-Respondent.
- Respondent: The other party, who is served with the papers filed by the Petitioner. If the Respondent contests the divorce by filing a petition of their own, they become the Counter-Petitioner.
- County Clerk: The office responsible for filing all documentation and evidence used in court. It’s also where you can obtain copies of the documentation after the process.
- Judge: The individual who will ultimately grant or deny the divorce and determine which terms will be legally binding.
- Discovery: The process of presenting evidence to the court in support of either party’s case and obtaining that evidence from the other party.
The process of requesting the divorce court to grant relief from the marriage begins with the original petition. The petition is sent to the Respondent through certified mail, faxed by a respective lawyer, or delivered by a court constable. It must be delivered using one of these official methods because the timeline for the Respondent to answer does not start until the petition is delivered through an official, traceable means.
Working with a Divorce Lawyer
Speaking of lawyers, hiring one is not required in any situation. Whether to hire a lawyer is entirely up to each party, but if one person hires a lawyer, the other would be well advised to do the same. In almost all contested divorce cases, hiring a competent lawyer can simplify the process. They understand court procedures, often have connections within the system to expedite matters, and, if local, likely know a lot about the judge and their decision-making style.
The downside? Lawyers—especially the competent ones—can be expensive. Filing papers and paying court fees is relatively inexpensive, but legal services can add up quickly, with every action incurring a cost. If you have the means to pay a lawyer, it’s wise to do so, even if you only have them review court documents to ensure there are no hidden clauses. There are good free or discounted legal assistance options available for those with limited resources, but these services often have more clients than they can accommodate.
Once the original petition is filed, the Respondent must provide an answer. In contested cases, the Respondent typically submits a counter-petition asking the court for different terms than those filed by the Petitioner. Occasionally, the Respondent may file the petition in a different court, necessitating a determination of which court holds jurisdiction over the case. More often, however, the answer is filed in the same court, and the county clerk will schedule a hearing with the judge.
While waiting for the hearing, both parties will gather the evidence needed to present their claims to the judge through the discovery process. When both parties have lawyers, this can become the costliest part of the divorce. Gathering evidence requires paperwork, research, and review, all billed by the hour at rates of hundreds of dollars. Some lawyers may even exploit discovery to financially drain the other party, forcing them to represent themselves or hire a less competent lawyer.
Discovery can also be emotionally taxing. During this time, both parties sift through sensitive information related to anyone connected to the couple, searching for any scrap of evidence that might strengthen their case, regardless of who may be embarrassed in the process. It’s imperative to be entirely honest with your lawyer; they are bound to keep your information confidential but cannot effectively combat claims from the other party if they don’t know what they’re dealing with. No matter how embarrassing it may be, share everything your lawyer needs to know about any skeletons in your closet.
The easiest way to lessen the financial burden of discovery is to cooperate with the other party as much as possible and avoid it altogether. However, once you’re in it, the most economical way to proceed is to do as much as you can on your own. Many forms can be completed independently, and providing your lawyer with physical copies of relevant documents—such as letters, emails, and photos—can help reduce printing fees.
At some point during this process, the parties will begin negotiations on the terms of the final decree. Since it’s clear that agreement has failed, at least try to agree on as many items as possible. Remember, court appearances are public record, so it’s wise to minimize the time spent discussing your personal life in front of others. Additionally, the lawyer’s time clock is ticking during this period.
When it comes time for the court appearance, keep a few things in mind to make your case easier. First, observe proper court etiquette: DO NOT arrive dressed for the pool or a party. Dress nicely, ideally in business casual attire or a respectable suit. Second, be polite to the judge and refer to them as “Your Honor,” regardless of how many times the lawyers inappropriately refer to them as “Judge.” Lastly, while lawyers should have all the necessary materials from the discovery process, ensure you also have all evidence needed to argue your case.
Unless there is a compelling reason to hear a witness out of order (e.g., a witness with a job that requires them to leave early), the judge will first hear the case and witnesses from the Petitioner. When it’s your turn to take the stand, pay close attention to the questions asked by the other party’s lawyer; they may pose tricky questions designed to elicit unintended admissions. For example, a common question is, “When was the last time you beat your wife?” The only appropriate response should be, “Sir/Ma’am, I’ve never beaten my wife.”
Depending on the extent of disagreement between the parties, the court may not hear all testimony in one session. Whether it takes three hours or three months, the judge will make a decision once all sides have been heard. Hopefully, that decision will be fair and equitably distribute property while addressing all issues raised by the parties. If a party feels dissatisfied with the outcome, they have the option to appeal to a higher court, essentially restarting the process and prolonging the case. However, in most instances, the first appearance suffices, and the judge’s decision is enacted as law through their signature on the final decree.
Real easy, right? This article is certainly not a comprehensive guide, but it should help you understand where to start and what to expect in the coming months. Divorce is never easy, despite the complex system involved in appearing in divorce court. The recurring message throughout this article is that everything becomes much simpler by being as agreeable as possible. At this point, I ask one final question: Is the marriage truly over? If you haven’t seen a counselor
