If you are thinking about going through a divorce but don’t know how to begin or what to expect, then you have come to the right place. Before you start reading, you may be feeling overwhelmed and under-educated about the entire process. The intention of this section of our blog is to de-mystify the divorce process for you. By the end of this section, you will have a good idea of what lies ahead of you. Remember that every case is unique, while what follows is generic.
A divorce can begin in one of several ways. It can begin with your attorney writing a letter to your spouse indicating that he or she has been retained and your spouse should retain his or her own attorney. These letters typically contain standard language to the effect that you and your attorney are hopeful that the case can be amicably resolved. We then wait and usually do hear from an attorney within a couple of weeks. In these cases, we often don’t file the Complaint right away; instead, we begin working on case issues just between the attorneys. We can always file the Complaint as we go along, or after an Agreement has been signed.
Alternatively, we can go ahead and file the divorce complaint early in the case.
Filing the complaint at the very beginning of the case may be either voluntary (you just want to get it started) or necessary (your spouse is racking up charge cards, money is disappearing, your spouse stopped paying bills he or she normally pays, or similar instances which might require the Court’s intervention early in the case). Once the divorce complaint is filed with the Court, it is assigned an “FM” docket number and a judge. It is then returned to the filing attorney, who serves either the opposing party or the opposing attorney if there is one in the case. Service is usually by mail in the first instance. If service by mail is unsuccessful, only then do we typically serve the opposing party by personal service.
Either way you get started, the next steps are fairly predictable. Although they may not all apply to your case, most of them will; also please note that although we are referring to these as “Step One,” “Step Two,” etc., they may occur in a different order in your particular case or two or more “steps” may occur simultaneously.
Step One: The Case Information Statements. One of the first steps taken at the beginning of a divorce case is the completion of a Case Information Statement by both parties.
This form is often referred to as the “CIS,” a term you will hear often throughout your case.
The CIS is a long, tedious but necessary financial form. You should be given a blank CIS at your first meeting with your attorney so that you can begin working on it right away. When completed, the CIS provides a snapshot of your income, expenses, assets and liabilities. In some cases, forensic accountants may prepare the CIS for the parties. This form is heavily relied upon by the attorneys and the Judges (this point cannot be emphasized enough) throughout the case to make the key decisions such as alimony, child support, asset identification and equitable distribution, so it is important that you fill it out accurately and completely.
Step Two: The Pendente Lite Motion. In some cases although not all, you or your spouse may file what is called a Pendente Lite Motion. These Motions can be filed only after the divorce complaint is filed. A “Motion” is an application filed with the Court requesting specified items of relief. It is supported by each party’s Certification (much the same as an affidavit) and other exhibits. The filing spouse files the first Certification, the other spouse then files a Responsive Certification and often a Cross Motion, and the filing spouse then files a Reply Certification. There are time limits and page limits for Motions. There is a minimum four to six week wait between the filing of the Motion and when it is heard by the Court. “Pendente Lite” literally means “pending the litigation.” A “Pendente Lite Motion” may be filed for one of many reasons but the goal is always the same: to preserve to the greatest extent possible the marital status quo during the divorce process.
A completed CIS almost always accompanies the Pendente Lite motion. Additional Pendente Lite motions may be filed throughout the case, often if a spouse is not complying with discovery, not complying with Court Orders or other problems arise which require a Judge to intervene. Unfortunately, the more Motions that are filed Pendente Lite, the higher your litigation fees will be so, where appropriate, reasonable efforts should be made to resolve these problems without going to Court.
Step Three: Custody Mediation and Parenting Time Programs: Assuming that a divorce complaint is filed and children are involved, both parties will be directed into their county’s Custody Mediation arid Parenting Time program. This happens very early in the process in the hopes that the parties can resolve these issues right away. Each program is comprised of two parts: an educational seminar and mediation between the parents. These programs are actually quite successful and very often result in a signed agreement designating which parent is the “Parent of Primary Residence,” and which parent is the “Parent of Alternate Residence,” and what the parenting times will be. While the attorneys are always hopeful that these issues can be worked out through the county program, it is very important that you talk to your attorney either before or immediately after you attend mediation so that you don’t end up signing an agreement you might later regret. If there has been a domestic violence Order entered between you and your spouse, if your children are too old to be the subject of a custody and parenting time Order, or if you have settled those issues without the need for the program, let your attorney know and they will take the necessary steps to opt you out of the program. But those are the only excuses; otherwise, these programs are mandatory.
Step Four: Discovery. “Discovery” is an umbrella term which covers interrogatories, Notices to Produce documents, depositions, subpoenas and other methods of fact-finding in all kinds of litigation, including divorce litigation. The purpose of discovery is for you and your attorney to learn as many facts as possible about the facts of the case. “Interrogatories” are a seemingly endless series of questions which may or may not apply to your case. The attorneys will serve either generic or specialized (or sometimes both) interrogatories on you and your spouse, who will hate filling them out as much as you will. “Notices to Produce Documents” are a seemingly endless series of requests for documents, some of which may apply to your case and some of which may not. Like interrogatories, the attorneys will serve either generic or specialized (or sometimes both) Notices on you and your spouse, who once again will hate collecting and supplying all those documents as much as you will. “Depositions” are question-and-answer sessions during which one attorney asks the other party or a witness (expert or fact) a series of questions under oath. A Court Reporter is in the room taking down all of the questions and answers.
Step Five: Settlement: Trial or ADR. After discovery is completed, every effort will be made to settle your case just using the attorneys. If it cannot be settled between the attorneys, then it will proceed to either trial or, more likely because of the backlog in the Court system, to a form of Alternative Dispute Resolution (“ADR”) such as mediation or arbitration.
Step Six: The Marital Settlement Agreement or Final Judgment of Divorce: If your case is settled through the attorneys, mediation or some other form of consensual agreement, then the attorneys will draft a “Marital Settlement Agreement” (MSA) which will incorporate all of the settlement terms. The MSA is not intended to be a one-time document such as a contract to sell a house. Rather, you will most likely be referring back to it many times post-divorce; in some cases, a Judge may also have to review the MSA after the divorce. Therefore, the intentions of the parties at the time that the MSA is signed must be clear to anyone later reading and interpreting the document. Your attorney will want to make sure that the document is as clear as possible when it is signed so don’t be surprised if the drafting, review and revisions of this document take some time. At this point the light at the end of the tunnel is visible, so be patient! If your case is not settled, it will probably be diverted to arbitration, or it may go to trial. Either way, you don’t end up with an agreement but rather with a Final Judgment of Divorce, which incorporates the Judge’s or arbitrator’s rulings. You will have less flexibility with language in a Final Judgment of Divorce.
Step Seven: You’re Done! As difficult as it is to believe, people who intend to get divorced do actually get divorced sooner or later. Although the process may seem endless, it does eventually end. Check with your attorney to learn more about the outside time frame for finally obtaining your divorce, as it will differ greatly depending upon the county in which you live.