Keep a positive attitude
Shortly after 9-11, a local TV reporter entered a VFW in the North Eastern part of the U.S. She looked around at the assorted veterans and patrons of the venue and asked if anyone had been in a war and would like to comment on 9-11.
"I have been in a war before," said one of the elderly Veterans, hunched over his Budweiser. With a look of interest, the pretty reporter stepped forward. With anticipation of having landed her news bite, she asked, "What war was that?
"I was married," he answered. The place erupted with laughter and the reporter promptly left. That anecdote is a true story.
Funny, perhaps, but it does underscore that a bad marriage is often equated by some to be similar to serving a tour in "Nam" or a stint in the forgotten war such as Korea. Seriously though, nothing is like real war so that comparison is merely an exaggeration. (Hopefully you will never have to experience real war, which may make your divorce seem like a day at the beach comparatively speaking). Nonetheless, many will describe a divorce in such battlefield terms. Let us remind you that your divorce never will be as bad as a real war so don't sweat like it is one (though it may seem like it is). However, let us humor the analogy: divorce then is the final extraction from war. You made it, you are going home, and you are on the chopper and going back to the land of freedom. Look at it that way. But, wait a second. A lot can happen getting on the chopper and being so close to freedom. You better do your all to avoid getting hit with a last minute RPG! This means you better understand how the ride home works. What happens? How does it happen? What do you have to do? That is what we will answer now.
Welcome to uncertainty
When people decide to get a divorce, they usually don't know what to expect if anything at all. Divorce is a complex legal process. It can be full of unpleasant surprises and frustrating delays. A general understanding of what's likely to happen can help you feel more comfortable on that flight back to freedom at a most uncomfortable time (and believe us it will surely be uncomfortable).
The following chronology gives a general idea of how the typical divorce proceeds. Your divorce may be a little different because of differences among state laws or because of specific issues between you and your spouse and you and your children. For example, arguments over where your kids will live and how to split up the college savings can make the process more complicated. Your attorney can help you understand exactly how your divorce will fit with this chronology. Herein we should emphasize a very important aspect of the divorce proceedings - your attorney works for you and should clearly explain every step of your divorce. A good tip is to check your State's web site (most of them have them now) and you should be able to glean the nuances of your States laws regarding no fault divorce and what have you. The process below is a generality. There might be 50 different variations to the steps below - get it? - One for each State. Still, it generally works as outlined below.
The Divorce Proceedings
To start off the divorce, one of the spouses gets a lawyer, who writes up a petition (also known as a complaint). This is a legal document that says why the spouse wants a divorce and how he or she wants to settle financially. It also will detail custody aspects and other issues relevant to the divorce. A divorce of a marriage of 25 years might have lots of tertiary issues to resolve. Then again, every divorce is different and there will be something uniquely frustrating about yours. Count on it.
The lawyer files the petition or complaint with the court in the local jurisdiction. Sometimes this is called Family Division court or will be named something similar. A critical aspect is that the either the lawyer or the court will ensure the petition/complaint is served on the other spouse, together with a summons that requires that spouse's response in official legalese sounding language. This is pretty much casting the die and crossing the Rubicon. You serve divorce papers; it's time to get it on!
After feigning a lock of profound shock, the served spouse has to answer within a certain time (usually about three weeks) as to their official response to the complaint and what they want to do about it. They may also call you every name in the book, too (just be prepared). The answer (or response) says whether or not the served spouse agrees with the petition/complaint. If he or she doesn't answer the petition/complaint, the court regards that as the spouse agrees to the terms. So, if you happen to be on the receiving end of divorce papers, whatever you do, don't pitch them in the trash can. Answer them immediately. The response says how the served spouse would prefer to deal with divorce decisions and this is often where all hell will break loose, especially if the divorce comes as a surprise.
The couple exchanges documents, epithets, curses and other information about issues such as property and income and the kids. By examining this information, the couple and the court can decide how to divide up property and how to deal with child support and alimony. This can be very emotional so relax and let your lawyer work out the details.
Sometimes, the couple can voluntarily resolve all their issues through mediation or settlement. Some states require that divorcing couples go through this process in an effort to avoid the divorce judicial process.
If a settlement is reached, the settlement agreement is shown to a judge at an informal hearing. The judge will ask a few basic factual questions and whether each party understands and chooses to sign the agreement and that nobody was made to sign it or was not there when they were said to have signed such a document.
If the judge approves the agreement, he or she gives the couple a divorce decree that shows what they agreed to. If he or she does not approve it, or if the couple does not reach an agreement, the case will go to trial and it is "Kramer vs. Kramer" time (famous movie with Dustin Hoffman regarding divorce).
At trial, the attorneys present evidence and arguments for each side, and the judge decides the unresolved issues, including child custody and visitation, child and spousal support, and property division. Once the judge has reached his or her decision, the judge grants the divorce and you have to live with it for better or worse. Well...
Either spouse can appeal a judge's decision to a higher court. But it's unusual for an appeals court to overturn a judge's decision when it comes to divorce. Also, keep in mind that settlements usually cannot be appealed if both spouses agree to their terms so this makes it problematic that an appeal would actually work. In short, take it with a bitter pill if you have to, but you will take the judge's ruling.
How long all this stuff will take is hard to quantify in terms of an average length of time. Like we said, every case is uniquely different and those differences might make the thing drag on. Also, as we mentioned, just because it is an unpleasant experience, don't rush it to its conclusion. It's hard to say how long all these steps will take in your case and that is about the only thing you can count on. It can take as little as a few months, to as long as several years. Generally speaking, the more the couple can work together and be reasonable the quicker everything might get wrapped up.
What happens next?
By now you should have a rough idea of how the divorce process will work in all 50 states, keeping in mind that all 50 states might have 50 different twists and turns of their own to the process outlined above. You are best advised to consult your State or a knowledgeable lawyer who will know the nuances of divorce proceedings in your state.
From this point, we will assume a judgment has been made and the judge has issued a divorce decree. Next, we will analyze what this all means in our next section titled (drum roll please), The Day After.
Click here for Part 5
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