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Getting a Divorce? A Legal Guide

Getting a Divorce? A Legal Guide

From Getting an Attorney to Going to Trial, Divorce Can Take Time, Toll on Partners


    The decision to get a divorce is just the beginning of what could be a lengthy process, financially and emotionally. If you have children, the effect could be long lasting. But the legal process of a divorce can also take time. If a divorce is contested, it could take more than a year for the marriage to be dissolved. Even when both spouses agree that the marriage should end, the steps can take some time. Here is a step-by-step legal guide to the divorce process. While it doesn't include every detail, it should give you a broad overview of the process. To get details about how it works in your state, consult the clerk of court or legal aid office in your area -- or find a family law attorney who can give you the legal advice you need.

STEP 1: Decide how you want to file, who will represent you and other legal details.

Once you’ve decided to file for divorce, your first step is to determine which course the process will take. If you don't have money for a divorce and your case is a simple one without children or many assets like a home, you may want to consider a divorce kit or help from a paralegal, who can not give legal advice but who can help you file the correct paperwork. 

If you'd prefer an attorney, there are other issues to consider before filing. Should you file for an annulment and how can you do that? Will it be an amicable divorce? If so, both parties should if filing a collaborative divorce action is feasible? Or do you need mediation, in which a neutral third party is hired by both parties to help the couple reach a compromise while dissolving the marriage. In the collaborative process, both spouses and their attorneys work toward a divorce agreement. If the divorce is contested by either party, then each individual needs to find an experienced divorce attorney as a guide through the court proceeding. When picking an attorney, be certain to ask questions about experience, what to expect from the divorce process and how much he or she charges for legal fees and other costs.

STEP 2: File a divorce complaint or petition based on your state law.

With the representation issue settled, the legal process begins. Since divorce proceedings are governed by each state’s laws, check with your attorney or the clerk of your local court as to the appropriate filing procedures.

The laws vary by state. They become more complicated if you have moved from one state to the other, which may require you to make a decision about where to file that is best suited to your needs. Whether it's how long you have to live in a state to file to whether one state's laws will be financially better for you in the long run, this is really your decision. Also, in some states, if you or your spouse are pregnant when you file, that may affect when your divorce is granted as well.

Remember that some states require proof of certain grounds, such as adultery, before a divorce is granted; others allow for no-fault divorces. In some states, the finding of grounds may have an effect on the divorce settlement. For instance, in some states, a judge may penalize a cheater, giving more marital money to the other spouse.

As for the courts themselves, many states have specific family courts that have jurisdiction over divorce proceedings. The party seeking the divorce files the initial complaint or petition for divorce. This document contains the specific grounds for seeking the marriage's dissolution and is served on the other spouse. Even in an amicable divorce, a complaint must be filed with the court.

In addition to serving notice on the other party, the divorce petition also serves as a guide for the trial, particularly in contested divorces where evidence and testimony will be taken and pleadings by each party heard. The spouse who is served the divorce papers, typically referred to as the defendant or respondent, is required by law to formally respond to the complaint within a designated time. A response should detail what the respondent agrees or disagrees with in the initial complaint. Failure to respond could negatively affect the respondent's standing in the proceeding and any court decisions.

Once the complaint and response are filed, the court will hold a hearing to issue temporary orders. These rulings, on such issues as who gets to stay in the housechild custody, spousal support and residential occupancy for children, are made based on preliminary financial information both parties provide. Many parents wonder how much child support payments will cost or how much they will get or pay in alimony. The answer is that it varies by state. And temporary child support or spousal support is usually adjusted as the divorce action, which could take months, proceeds.

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