The process for obtaining a divorce can range from being simple to hostile. For an uncontested divorce, the parties are in agreement about all the issues. A joint petition for divorce is filed with the court along with an agreed upon settlement agreement. In most jurisdictions, this joint petition for divorce and settlement agreement can be filed and heard on the same day. So long as a judge feels it is equitable and fair, a judge is given the power to approve it on the same day that it is filed.
For a contested divorce, the process is much harder and longer. The first step is to contact an attorney for an initial consult. During our initial consults, I will discuss with you the difference between contested and uncontested divorces, the benefits and pitfall of each, your rights when getting divorced, and what to expect following the filing for divorce.
If you decide to move forward with your divorce, there are a number of actions that must be taken. First, a complaint for divorce must be filed. I and my office help clients by preparing and filing the complaint. In addition to filing the complaint, you will need to organize your financial documents – such as copies of bank records, tax returns, pay stubs, retirement accounts, health insurance policies, etc. – as these items must be exchanged during a divorce. It is best practice to have these items organized and ready to be produced.
Second, a decision must be made whether to proceed to Probate Court for temporary orders for custody, support, and potentially other matters. Frequent types of temporary orders include those addressing children in danger from the other parent, orders when custody arrangements cannot be agreed upon, and orders requiring immediate support.
The exact orders needed are necessitated by the situation of the parties and evaluated on a case by case basis; I can advise you as the orders that should be filed on your behalf, as well as preparing and making such filings. In some cases, the temporary orders sought are contested by the other parent; if this is the situation in your case, a hearing may be required. I will represent in you in these and all other hearings for your matter.
Following the initial filing and obtaining any temporary orders, the discovery process occurs. This is a process by which documents can be obtained, depositions of parties and witnesses conducted, and information is collected.
In Massachusetts, there are mandatory disclosures regarding finances, assets, wages, and bills. In addition to this mandatory disclosure of assets and liabilities, additional discovery tools can be used to obtain more information. The tools include interrogatories (written questions that must be answer by your spouse/partner), requests for production of specific documents, requests for admission, and depositions. The nature of discovery requests is dependent upon the facts of your case.
Soon after this discovery process begins there will typically be a voluntary or court-ordered mediation. Mediation can be a helpful process when the parties feel they would rather handle the majority of their divorce themselves rather than have a judge decide the issues at trial. The mediation process tends to be quicker than an adversarial trial and is much less expensive in comparison.
Mediation should be viewed by the parties as an opportunity to take control of their divorce and to also control the outcomes. It’s important to realize, for example, that a judge may not have the same interests in setting up a visitation schedule for children as will the parents.
Mediators are usually experienced family law practitioners who can advise the parties regarding the likely outcome of issues. While the mediator has no power to decide the outcome; the parties can use him/her as a tool to work through the agreement.
Mediators and experienced family law attorneys are usually helpful in developing creative solutions to difficult problems, such as property division, custody, and visitation. Divorcing spouses should always remember that these issues will be resolved – either they can develop the solution during mediation or other negotiation between their attorneys, or the court can make binding decisions.
If the parties are unable to reach an agreement during the discovery process and mediation, a trial occurs. During a trial, witnesses are called to testify (including the divorcing parties themselves), documents are put into evidence to establish assets, wages, and liabilities, and a judgment is rendered. A divorce trial ranges in time from lasting only a few hours to lasting weeks. Following the trial, the judge will render a judgment wherein the judge will award the parties their long sought divorce, rulings regarding child custody and support, alimony and division of property.
Because the cost for going to trial is usually higher, and because at trial the decisions are taken out of the hands of the divorcing spouses and given to a judge, trial is usually not the best option if it can be avoided.
As an individual, you are legally entitled to represent yourself in any matter. The critical question is whether your interests will be best served by you representing yourself or having an experienced divorce and family law attorney represent your interests?
Your spouse is under no obligation to not retain an attorney simply because you may decide not to retain one. In this situation, without an attorney, you may find yourself completely overwhelmed. If you don’t have an attorney, you may also find that important items – like potential benefits from retirement pensions – are not resolved. Because property, custody, visitation, and similar matters all have long-term and significant ramifications, an attorney can help greatly in protecting your rights and seeking to accomplish your objectives.
I provide affordable, experienced representation, with an emphasis on creative solutions in helping clients seek the objectives that are the most important to them. If acceptable solutions cannot be accomplished through mediation and negotiation, at a client’s direction, I and my firm are well prepared to go to trial.
Call me today for a free consultation and to learn how I can help.