Divorce in the US – Legal Process and What to Expect
The divorce process starts when one spouse or domestic partner files papers with the appropriate court. Then the other spouse must be given legal notice, usually by hiring a sheriff, constable, or professional process server to hand deliver the papers or by using other methods allowed by state law.
If the parties agree on all terms, their lawyers can settle. Otherwise, the case goes to trial before a judge.
Jurisdiction
The jurisdiction in which a divorce or custody case is filed can have a major impact on the outcome. The proper venue can affect spousal support, child custody, and other key legal issues. Therefore, it is critical to understand how the laws of your state regarding divorce and custody proceedings apply to your specific situation.
Most states have jurisdiction requirements, also known as subject matter jurisdiction, that must be met in order to file a divorce or custody case. To meet the subject matter requirements, spouses must live in the state for a certain amount of time, which varies from one state to another. For example, New York requires that you must be a resident of the state for at least one year before you can sue for divorce.
In addition to meeting the subject matter requirements, you must also meet personal jurisdiction requirements in order to have a court judge hear your case. This is the requirement that the judge has enough personal contact with you and your spouse to have the authority to make legally binding decisions in your case. In a divorce or custody case, this means the court must be willing to hold court hearings in which you and your spouse present evidence like financial statements, witness testimony, and other documentation of your relationship and the reasons for ending it.
Some states have personal jurisdiction rules that are designed to protect children and prevent abuse of the divorce process. For example, some states require that you prove that your marriage is irretrievably broken or that you have a valid reason to end it, such as incompatibility, incurable mental illness, or adultery.
Child Custody and Visitation
Often, the most difficult issues for divorced parents involve children. Courts consider a range of factors when deciding custody and visitation rights for parents, including a child’s safety. Judges prioritize stability and consistency for children, so jumping into a new relationship before your divorce is final, moving to a different school district, or spending less time with your children can harm your case. Similarly, any history of domestic abuse or drug problems can also affect the outcome of your custody dispute.
In the past, judges would frequently award custody to a mother based on her gender, but today’s laws make it more common for courts to award joint legal custody. This means that both parents are allowed to make major decisions affecting the child, but one parent holds primary physical custody. Custody and visitation are typically arranged on a temporary basis until the final divorce decree can be agreed upon.
If you think your spouse is endangering your children’s well-being, be prepared to provide evidence in the form of detailed documentation. Simply saying “a while ago” or describing an incident as “severe” does not carry much weight in court.
While many states allow no-fault divorce, some conservative politicians and commentators have pushed back against it, claiming that no-fault divorce degrades the American family and marriages, which are ordained by God. These arguments have led to a return to fault-based divorce in some places, including Texas and Nebraska. These types of divorces require a showing that one party committed an act like adultery or domestic violence. Some states also require a period of separation before a divorce can be granted. However, the vast majority of divorces in the United States are no-fault.
Property Division
While the word “divorce” brings to mind feelings of freedom and despair at the end of a marriage, it also involves legal matters regarding property division, custody, support, and other issues. Many states follow either community property or equitable distribution laws, which determine how assets and debts are divided between the parties.
Property may mean anything from cash or bank accounts to stocks, business interests, and real estate. The court considers several factors when dividing marital assets, including each spouse’s earning capacity, the length of the marriage, and other contributions to the family. In addition to assets, a court must also account for any marital debts, such as credit card loans or mortgages. New Jersey law requires a judge to apportion such debts fairly between the parties.
Depending on the type of property involved, determining its value can be challenging. Some assets, such as cash or bank accounts, are easy to evaluate, while others, such as real estate, retirement accounts, and businesses, require expert valuation by forensic accountants or business appraisers. Heidi E. Opinsky works with a team of valuation experts who help her determine reasonable values for these assets to use during negotiations and trials.
The first step in a divorce is for one spouse to file a petition, or complaint, against the other. The petition typically includes information about residency, jurisdiction, and proposed relief, which can include spousal and/or child support and/or property division. A divorce can be fault or no-fault, but many parties cite irreconcilable differences as the reason for the marriage dissolution. Fault divorces are based on allegations of wrongdoing, such as adultery or abuse. A court may also consider other grounds such as incurable insanity, criminal conviction, or infertility.
Settlement Negotiations
In New York, spouses can choose to resolve their divorce through settlement negotiations, a trial, or other methods of litigation. When a couple decides to negotiate, they work with their attorneys to reach an agreement on terms for the marriage dissolution. Those terms may include alimony/spousal support, child custody, property division, and other issues.
As part of the settlement negotiation process, both parties must exchange financial information and complete the discovery to obtain as much information about the marital assets and debts as possible. It is not possible to negotiate fairly and effectively without this information. In some cases, the spouses will need to hire expert witnesses or appraisers to assist with the discovery process.
After reviewing the financial data and completing discovery, the spouses can begin the negotiation process. While there are many different factors to consider, there are some tips that will help make this process as smooth as possible.
When negotiating, it is important to be willing to compromise. For example, if a spouse comes into negotiations insisting on a certain amount of spousal support or refuses to give up the house, this can quickly stall the process. Taking this approach sends the message that you are not interested in working toward an agreement that is fair to both parties.
It is also important to avoid “positional bargaining,” which occurs when one party takes a position that they cannot possibly accept in the end. This can lead to a standoff and create an atmosphere where the opposing spouse will not want to engage in the negotiation process. This will not only harm your ability to come to an agreement, but it could also result in a costly trial.
Trial
During the divorce trial, each spouse presents their case to the judge and witnesses. After considering all evidence, the judge will issue a final ruling on any unresolved issues in the case, including property division, alimony, child custody, and support. Once all outstanding issues are resolved, the judge will issue a final decree of divorce that will end the marriage.
During this stage of the process, it is important for each party to refrain from making major financial changes or disposing of any assets. Additionally, both parties should be careful of what they post online, as any negative or angry comments may come back to haunt them in court.
When filing for divorce, the person seeking the divorce files a petition for dissolution of marriage along with supporting documentation like bank statements, tax returns, and 401(k) information. The other spouse will then be served with the papers within a certain timeframe that varies from jurisdiction to jurisdiction. Once your spouse has been served, they have a set amount of time to respond to the petition before their failure to do so will result in their case becoming contested.
Some states allow or mandate couples to participate in divorce mediation before going to trial. This option is often less expensive and more efficient than fighting the case through litigation.
If a negotiated settlement is not reached, your case will move into contested status and require negotiations or a divorce trial. A contested divorce can be complex and take months to resolve. During this time, either party can request temporary court orders for issues like child custody and support that will be in effect during the pendency of your divorce.