The Process of Divorce

Stage One

The process of a dissolution is commenced with specific pleadings. Pleadings are what legal documents are called. The pleadings that start a divorce are called the Summons and Petition. The Summons is basically a call to action, alerting the spouse receiving the papers to respond to the papers. The Summons also has some specific restraining orders designed to prevent the spouse receiving the papers from dissipating (disposing of) family assets before there is a formal hearing. The Petition is a summary of factual information about the marriage. At the end of the Petition there is a provision indicating what the Petitioner will be seeking from the court. It is a wish list, not necessarily what the court will ultimately do.

Once a spouse has received the Summons and Petition he or she has the right to respond in an Answer and Counter-Petition.

The person who commences the dissolution is called the Petitioner. The person who responds to the initiation of the dissolution is called the Respondent. There is usually no advantage to commencing the action or responding to the dissolution, unless the spouses live in different counties with significant differences in the time it takes a case to be processed through the court.

The Answer identifies those parts of the Petition, with which the Respondent agrees and disagrees. The Counter-Petition is the same as the Petition but is for the responding spouse (Respondent).

The exchange of the Summons and Petition and the Answer and Counter-Petition is often followed by the need for a preliminary hearing called a temporary hearing. The temporary hearing may be needed to resolve such issues as custody, occupancy of the house, child support and spousal maintenance during the pendency of the dissolution proceeding. Until there is a court order there is no determination of these issues. The parties can resolve the temporary issues by agreement. However, if the parties cannot agree, then it may be necessary to have the court decide what will happen while the case is proceeding to a conclusion.

The resolution of the issues will be set forth in an order called a temporary order. This order will bind the parties until a new order is issued or until the divorce decree is entered.

The parties can forego the need for a temporary hearing if each agrees to a course of behavior that is designed to maintain the status quo financially and which protects the best interests of the children, if any. The agreement can be informal, without a written agreement, or it can be formalized into an agreement signed by the parties and their attorneys. The written agreement can be used by the court as the basis of a temporary order issued without the need for a hearing. Agreements that are not written cannot be honored by a court if there is a dispute about what was agreed upon.

Stage one of the dissolution is complete at this point

Stage Two

In this phase of the dissolution process the attorneys use the various legal tools available to them to gather information about the issues of the case. Matters such as the identity and value of assets and liabilities, the reasons a spouse is seeking spousal maintenance, the basis of a request for custody, and financial information about income and living expenses are some of the areas in which information may be sought.

Once all the information about the issues is gathered then the case can proceed to the third stage.

Stage Three

The third stage of a dissolution is the settlement stage. It is at this point in a case that the spouses and attorneys endeavor to use the information received to negotiate a resolution of the issues.

If the case can be settled a document, usually called a Marital Termination Agreement, will be drafted. This document is a contract setting forth the terms on which the spouses agree to end their marriage. All issues, assets and liabilities should be set forth in the agreement. Both spouses sign the Marital Termination Agreement. It is then presented to the court in the fourth stage.

If the parties cannot settle the issues of the case then the parties will have a contested dissolution, which must be resolved in the fourth stage.

At least ninety-five percent of the cases will be resolved through settlement. However, human nature is such that the spouses may not settle until they are forced to do so. The parties to a case can only be forced to settle when it is clear that the only other option is trial. Depending on the county involved, a trial may not be scheduled for 12 to 18 months, or more, after the case is started (many of the more rural counties have shorter periods to trial). Once the alternative of waiting before making the hard decisions is no longer available, most spouses will opt to settle.

Stage Four

In the fourth stage, the spouses either settle the case or they go to trial. If the spouses have settled the case and signed a Marital Termination Agreement, then the fourth stage can be a simple default hearing or an administrative hearing. In a default hearing, one of the spouses goes to court with his or her attorney for a brief hearing. The Marital Termination Agreement is presented to the court and after the court approves the contract the decree of dissolution may be entered. This is rarely required anymore.

Most frequently the final hearing is resolved through an administrative hearing in which the Marital Termination Agreement and the Judgment and Decree of Dissolution are mailed to the court for approval and entry, without the need for an appearance by the parties or attorneys.

If the parties are unable to resolve their disputes then the fourth stage becomes a trial called a contested final hearing. The spouses each present their facts to the court and the judge decides who gets what and how much. This is the least satisfying method of dispute resolution because it is unlikely that the judge can resolve the issues better than the disputing spouses.

Trial can be very expensive. (see also The Cost) To estimate the cost of a trial is difficult. The cost of a trial can be especially high if the complexity of the case requires the use of experts (such as accountants, vocational experts, psychologists and appraisers) whose fees would be additional to those of the attorney.

Custody trials are very expensive. The nature of custody cases can require several days of trial time in order to properly present testimony from both parties, psychologists and supporting witnesses.

The cost of a contested final hearing is expensive not only financially, but also emotionally. There is little emotional satisfaction in a trial and the cost should be examined at the beginning of a case to enable the spouses to stay on track toward settlement, wherever possible.