The Divorce Process
If you are facing a divorce, separation, or filing for divorce, you may feel totally confused by the process. Although each case is unique, by breaking the process down in a step-by-step fashion, you will get a clearer idea of what’s involved.
Hiring an Attorney
Many people believe that they cannot afford to hire an attorney when facing a divorce. Before you reach the conclusion that you are unable to afford to hire an attorney, explore your options. Today, there are many affordable options, including Flat Fee Representation, Hourly Representation, or Limited Assistance Representation and Mediation. Representing yourself (Pro Se), can lead to avoidable poor outcomes that can have long-term financial and personal consequences.
Interview at least three attorneys. Make a list of questions before the interview. Ask the attorney about their fee options. In addition, ask the attorney about mediation and if they are a certified mediator. In the end, retain the attorney that you feel comfortable with and trust and whom you feel will be a good match with your personality and budget as well as your long and short-term goals.
Mediation – A First Option
Except in cases of physical and emotional abuse, the option that makes the most sense to explore first is to try to reach a settlement agreement, out-of-court, through mediation. Mediation, when successful, is the least stressful and most financially cost-effective process of divorce.
Filing a Complaint for Divorce – Contested Divorces
Litigation is when the parties cannot resolve their major issues by agreeing upon settlement. A Complaint for Divorce (request for divorce) is filed by one party (Plaintiff) and is served, by summons, on the other party (Defendant). The spouse whom is served has twenty days to file with the court their answer to the Complaint. The parties may then decide to try to reach a settlement either on their own or through mediation, and if a final settlement agreement is not reached (Separation Agreement), the parties prepare for trial.
Once a Complaint for Divorce has been filed, there may be immediate issues, such child support and visitation, spousal support, and housing. Since it may take months or over a year for your divorce to go to Judgment (a final decision), a Motion for Temporary Order is filed that asks the court to enter temporary orders, until the Judge enters new order or a final decision. Temporary Orders most often include such issues a child support and visitation; spousal support; and a decision about who will occupy the marital home. Well-written and thorough Temporary Orders often lay the foundation for the final settlement (Separation Agreement).
If the parties cannot reach a settlement agreement, the discovery phase begins. During discovery each party, through their attorneys, collect documents and all pertinent information and facts from one another. Discovery may include what is called Interrogatories (answers to questions in writing), Production of Documents (requests for financial records and tax returns), and Depositions (oral questioning of the spouses, under oath, outside of the courtroom). It is during the discovery phase that each party, through the gathering of all the pertinent documentation, information, and facts, develops and prepares their arguments.
During the divorce process, the attorneys may file requests (Motions) to the Judge. The Judge may or may not allow the Motion. The filing of Motions can become very expensive and adversarial, and should only be done when the parties cannot agree on an issue through their attorneys in an out of court process and should be reserved for non-frivolous matters.
If you and your spouse cannot agree on the issue of child custody and visitation, the Court may appointment a neutral investigator, known as a Guardian Ad Litem (G.A.L.), to investigate what would be in the best interest of the child or your children concerning custody. The investigation by the Guardian Ad Litem includes interviewing both parents and other children in the family, if they are not a part of the custody dispute, and then making a written report with a recommendation concerning child custody and visitation. Although the Guardian Ad Litem is court appointed, one or both parents may be required to pay the GAL’s fees, which can be very expensive.
Most divorce cases settle either just prior to or just after the Pre-Trial Conference. Prior to the date of the Pre-Trial Conference, both parties and their attorneys are required to meet, at what is called the “four-way” conference. The purpose of this meeting is to encourage settlement between the parties and to reach agreement on as many outstanding issues as possible before the Pre-Trial Conference before the Judge.
Prior to the Pre-Trial Conference, the attorneys must submit to the Judge a document (Memorandum) that summarizes the history of the case and the parties’ positions on the outstanding issues. Usually the Memorandum are six to ten pages in length.
Each party makes their oral presentations (arguments) to the Judge. The Judge, who is the assigned trial judge, provides the parties with feedback on the disputed issues based on the memorandum and oral arguments. The Judge frames his or her response to let the parties know in-advance how the he or she would be inclined to rule on a disputed issue if the disputed issue was presented at trial. The Judge’s response narrows the scope of options and lays the groundwork for realistic settlement negotiations and a final settlement.
The vast majority of divorce cases are settled without a trial. Trials are prohibitively expensive and beyond the financial resources of most middle-class families. Trials are also emotionally extremely costly. However, if a settlement is not achievable, a bench trial (without a jury) will occur before the parties’ assigned Judge. Each party presents their case and evidence, which may include witness testimony. The Judge will issue a written decision on the issues in dispute in the case soon after the end of the trial.
Divorce and Family Law attorney Karen D. Lane’s office is located in the town of Sherborn, which is centrally located in Middlesex County, 3.3 miles directly south of the Mass Pike, on the Natick/Framingham town lines. She represents family law clients throughout metro-suburban Boston in Middlesex, Norfolk, Suffolk, Worcester, and Essex counties. Please call Attorney Karen Lane at 508-655-5513 or contact her online today to schedule your free initial consultation about to learn more about the divorce process and how she can help you.