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The Divorce Tutorial: Introduction
The Divorce Tutorial is designed to explain the divorce process in a step-by-step fashion, without the in depth technicality that
can often cause great confusion.
This Divorce Tutorial will allow you to absorb the divorce process, a piece at a time, so as whole you will be able to put them
together to understand how it a divorce begins and eventually comes to an end.
By reading this tutorial, you will be less likely to put "the cart in front of the horse", which is all to often the first and most
devastating mistake most people make.
Bear in mind, though, that the more you understand ahead of time about the family-law system, the better your
judgment will be when it comes to working with a lawyer or doing your own divorce.
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A Basic Overview of the System
Even though the relationship between you and your spouse has changed and you may no longer be living together,
until you are legally divorced, you are still married. The legal ramifications of being married vary from state to state,
but generally speaking, until you are divorced you and your spouse have certain rights to each other's money,
deferred compensation, pensions, insurance benefits, real estate, and other property. In general, until you are divorced not
only can you not remarry but also anything you obtain may be subject to a claim of ownership, in whole or in part, by your
spouse, and the future ownership of assets and property already obtained may be unclear. Even if you have a prenuptial agreement,
your spouse may succeed in having it declared invalid. In short, the potential to lose things you think are yours remains until the
divorce is final and/or all appeals have been exhausted. This is a very important fact to keep this in mind throughout your separation.
State laws, federal laws, code, and guidelines are the ground rules of separation and divorce. For example: the law specifying
what you or your spouse must prove to be entitled to varies from state to state. Some states require proof of certain "grounds,"
such as adultery while other states have "no-fault" divorces. Some states require the two parties to live separately (and under
specific conditions) for a certain period of time. All states have unique residency requirements. These few examples are touching the
surface of what can make the process of divorce more complicated than one might expect.
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Contested vs. Uncontested Divorce
There are two kinds of divorces - contested and uncontested. A contested divorce is one in which the parties cannot agree,
either about getting divorced or about the terms of the divorce, such as the division of assets, allocation of debts, alimony,
child support, or the custody of children.
In an uncontested divorce, the spouses agree on everything and do not need the court to divide assets or make determinations
about spousal or child support or custody. In general, an uncontested divorce will proceed through the system more quickly, be
much less complicated, and less of a financial burden.
Often couples will begin the process of a contested divorce and then, before the actual trial, reach agreement on the financial terms
and otherwise-of the divorce. This is called a settlement. One of the biggest advantages of a settlement is that neither spouse will
appeal it, because both by definition agree to it and thus are presumably happy with it. Both parties can therefore be assured of
finality and an end to litigation. If you reach a settlement with your spouse, it is essential to have the agreement memorialized in
such a way that it makes the settlement legally binding and enforceable.
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Most judges and lawyers prefer to settle out of court in an uncontested fashion. If you and your spouse can not come to some
type of agreement on your own, typically your lawyers will help you reach one eventually.
It has become more and more popular for spouses to "do their own divorce", eliminating the legal costs involved with hiring lawyers.
Spouses that are successful doing their own divorce are almost always in agreement, thus they are doing an uncontested divorce.
This is something you may want to consider before hiring lawyers if you and your spouse are in agreement.
It is not recommended that either spouse attempt to represent him or herself in a contested divorce. There is an famous quote,
"he who represents himself in court, has a fool for a client". This is very true, because the complexities of a contested divorce are
far to much for the average untrained individual to absorb. The financial and emotional repercussions of acting as your own lawyer in a
contested divorce case can be devastating.
The remaining portion of the tutorial is focused on the process of the contested divorce, because of these complexities.
Hopefully you will not end up going down this path, which is sometimes unavoidable, but it is essential that you read and learn
about it. It is crucial that all people contemplating or experiencing divorce understand the full spectrum of the process.
Too often, what starts out as uncontested becomes contested and vice versa, which is why the path from separation to divorce
can take many turns.
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As you continue, what you will learn will make you realize that working hard to come to an agreement with your spouse is probably the best decision for everyone involved. It is this common goal that is often forgotten by one or both spouses.
Trial Preparation and Discovery
In a contested case, after one spouse files for divorce, the often torturous, and tedious process of discovery begins. Each side sends the other lengthy lists of questions called interrogatories, which have been drafted by the lawyers and which must be answered under oath. Interrogatories are composed of questions about finances, assets, pensions, and similar financial issues. Through their lawyers, the spouses can also ask each other to produce documents such as bank statements, credit-card bills, receipts, tax returns, paycheck stubs, and the like. The lawyers will sift through the interrogatory answers and documents- and then question the spouses in person under oath at what is called a deposition. Other people who have relevant information, such as neighbors, friends, relatives, accountants, or other witnesses, may also be questioned at a deposition. A deposition takes place in the presence of a stenographer (a court reporter), who later transcribes what was said into a typewritten booklet.
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Usually the lawyers are looking for hidden or "wasted" assets, in order to determine how much money, earning power, and other assets each spouse has (or had) so that they can be divvied up. In contested custody cases, the lawyers will be looking for evidence that the parent on the other side is not fit or is not the best parent to have custody.
Trial preparation efforts are important because the information that comes out at a trial depends very much on how well the lawyers understand and present the facts-both favorable and unfavorable-to the judge. Even the best case can be lost if the lawyer is unprepared, careless, incompetent, or otherwise ineffectual. Moreover, the best-prepared lawyer with the best case can also lose if the other lawyer is more effective or the judge is biased. This is stated to emphasize the element of surprise that a courtroom decision carries with it.
Regardless of whether you ultimately settle your case or litigate it to the bitter end, trial preparation is essential. Lawyers who do not prepare for court hearings or trial (because they expecting a case will settle without a trial) turn their clients into sitting ducks. If the other side senses that you or your lawyer wishes to avoid a trial, cannot afford one, or is not preparing for one, you will be at a distinct legal disadvantage. In addition to being ill-equipped for a possible trial, the unprepared lawyer cannot negotiate a settlement from a position of strength. If you come to the peace talks with no bombs or bullets, will anyone listen to what you have to say? Keep in mind, a lawyer who is unprepared for a hearing or trial is inviting the opposition to take advantage of his or her client.
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Because trial preparation is time-consuming and expensive, you or your lawyer may be tempted to cut corners. Such a move could be penny-wise and pound-foolish, however, because if your case is well prepared, you should be able to proceed from a position of strength to fashion a satisfactory settlement instead of going to trial.
Expert Witnesses
Part of preparing for trial is locating expert witnesses. An expert witness is someone who is allowed to express a professional opinion at the trial. In divorce and custody cases, expert witnesses include psychologists, economists, accountants, social workers, and pediatricians, among others. In custody cases, the court will often allow testimony by psychologists or social workers to help determine what decisions are in the best interests of the children. Experts such as psychologists usually charge $150 to $300 per hour to evaluate the people involved and formulate an opinion regarding who should be granted custodial rights.
Do not assume that just because someone has a Ph.D. he or she will necessarily view your family situation the same way you do. Just as there are two sides to every story, there are also several ways to look at any given family dynamic. It is probably safe to assume that if your spouse is paying for an expert, that expert will find a reason why you should not have custody. Otherwise, why would your spouse be paying this person? Even if you and your spouse are splitting the cost of an expert or an expert was appointed by the court, do not assume that the expert will be impartial. Talk to your lawyer about hiring an expert of your own.
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Perhaps you have nothing going in your favor in a custody case. Let's say you are unemployed and your spouse, who works, takes the children to work and watches them there while you veg out at home every day. You want custody, though, so you won't have to pay child support. If you get custody, you plan to let your mother watch the kids and use the child-support money to make the rent and car payments. How can you get custody? Your best tactic may be to hire an expert to trash your spouse for being a compulsive workaholic. Sound far-fetched? It shouldn't -learn to expect the un-expected when it comes to a contested divorce and especially a contested custody case!
If your spouse hires an expert, beware. Take it seriously, and do whatever it takes to get your own expert to counteract your spouse's. Even better, be the one to get an expert first.
Hearings and Trial
Once the discovery process is complete, each lawyer will use legal precedent to construct an argument about what his or her client is entitled to. Then a trial will take place, during which the lawyers will present the judge, master, referee, or other person hearing the case with information favorable to their argument. This information is presented in the form of witness testimony focusing on whatever the lawyers decide to focus on. This is called putting on a case.
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The trial may not take place for a year or more after a divorce case is filed in court. Before the trial, numerous shorter court proceedings, called hearings, may take place. The purpose of these hearings is to resolve emergency issues such as where the children will live pending the results of the trial. Hearings will also be held to address legal issues that arise during the course of trial preparation. For example, suppose your lawyer has sent the other side thirty questions to answer under oath, but the questions have been ignored because the other side claims that the questions are improper. If your lawyer requests it, the court may hold a hearing to determine whether the other side should be compelled to answer the questions.
The trial itself will proceed in front of a judge, master, magistrate, or other hearing officer and will begin with each lawyer making an opening statement regarding what he or she intends to prove. Usually the lawyer for the person who filed for the divorce makes the first opening statement. Be prepared for the opening statement by your spouse's lawyer to include disparaging, insulting, and untrue statements about things such as your honesty, moral character, earning capacity, income, assets, and fitness as a parent.
After the opening statements, each side will present his or her case, with the party who initiated the lawsuit (the petitioner or plaintiff) going first. Each lawyer will call witnesses to the stand and ask them questions. This is called direct examination. The lawyer presenting a witness is not permitted to ask leading questions such as, "On December tenth, did your wife threaten you with a gun?" Rather, the lawyer must ask, "What, if anything unusual, happened on December tenth?"
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Because your own lawyer is not allowed to ask you leading questions while you are on the witness stand, you may find it difficult to figure out how to answer. If your lawyer asks, "What, if anything, occurred?" or something similarly vague, you may not know what he or she is driving at and get flustered. This is why it is valuable to meet with your lawyer before the trial and go over your testimony. If you believe you will need notes and further preparation to help you remember dates or other information, discuss this with your lawyer.
Once the lawyer presenting a particular witness has finished direct examination, the other lawyer is permitted to cross-examine that witness. In contrast to direct examination, cross-examination may include leading questions such as, "Isn't it a fact that, as a teenager, you used cocaine?" The other side's lawyer may ask you a number of questions like this-questions that have absolutely no basis in fact-just to make the judge think that you might have done such things. If this happens, your lawyer should put a stop to it by objecting. But even if your lawyer does not object, try to stay cool and calm. You will make a better impression on the judge if you do not lose your temper or become abusive.
Your lawyer may be permitted to ask additional questions of you or another witness who has just been cross-examined. This is called redirect. The other lawyer may then cross-examine that witness on the subject of the redirect testimony; this is called recross. Once the plaintiff's or petitioner's lawyer finishes presenting his or her witnesses and the cross-examination, redirect, and recross have been completed for each witness, then the other side presents its case and the initiating side gets to cross-examine those witnesses. Redirect and recross may once again follow.
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Sometimes witnesses are taken out of sequence to allow for scheduling problems. This is especially likely to happen if doctors are involved (due to demanding work schedules) and may sometimes be unavoidable, but a lawyer should not allow his or her presentation of evidence to be continually interrupted by witnesses taken out of turn by the other side. Your lawyer should focus on telling your side of the story in a logical and compelling way through the use of witnesses chosen because of what they know and how well they can communicate this information to the judge. As with any story, your case will not be as powerful or convincing if it is plagued by repeated interruptions.
Once each side has presented its case, the side that went first may present more testimony to rebut any new issues that were raised by the side that went second. This is called rebuttal. Then the opposing party may also present additional testimony to rebut any new issues raised during rebuttal; this is called surrebuttal. And each side may, of course, cross-examine the other's witnesses.
Once this process is complete, the lawyers make their closing arguments, which usually consist of blistering and unfair personal attacks on the opposing party. Do not be surprised if the lawyers mischaracterize or misstate what various witnesses have said on the stand. Many lawyers believe that, if they can get away with it, they have a duty to their clients to try these courtroom tactics. It is hard to say whether it is worse to be represented by a lawyer who aggressively twists the truth or to not have such a lawyer on your side. In any event, during closing arguments, you must sit mute while the other lawyer drones on with unfair innuendos about you. This is certain to be one of the most painful and humiliating experiences you will ever endure. Then it's up to your lawyer to go back and correct any misimpressions the other lawyer left with the judge.
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Appeal
After the trial, if you, your spouse, or both of you are not happy with the result, either or both of you may appeal. The purpose of an appeal is to determine whether the trial judge made a legal error such as misinterpreting the law or allowing into evidence testimony that should not have been admitted. If the appellate court determines that the trial judge did make a material legal error (that is, one that affected the outcome of the trial), it may send the case back to the same judge (or some other judge in the original judge's court) with instructions to correct the mistake. The way to correct the mistake is often for the judge to schedule the case for a whole new trial.
An appeal is generally not a vehicle for questioning the trial judge's factual conclusions. For example: suppose a trial judge concludes that a father is the better of two parents and awards him custody. In order to prevail on appeal, the mother must do more than simply argue to the appellate court that she is in fact the better parent; she must demonstrate that the trial judge reached the wrong conclusion because he or she made a mistake in applying the law during the trial.
Let's say that the judge in this hypothetical case found that the father was a better parent based on the testimony of six of the father's friends. Suppose the mother also had six friends she wanted to testify at the trial on her behalf, but the judge would not allow their testimony. Her lawyer objected and told the judge what these witnesses would say if they were allowed to testify, but the judge still would not allow them to testify. On appeal, the mother would argue that the judge erred by not letting her friends testify.
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It is very important that her lawyer told the trial judge what these witnesses would say and objected at the trial to the judge's refusal to let them testify. If the lawyer hadn't objected, thus giving the judge an opportunity to correct the mistake, the mother would not be able to raise the issue later in the appellate court. Fortunately, the mother's lawyer in this example "preserved the record & by objecting and offering the substance of the testimony to the court, thus paving the way for a successful appeal."
It is likely that the appellate court would agree that the trial judge should have listened to the mother's witnesses as well as the father's and would therefore issue an order vacating (or throwing out) the custody award to the father. In addition, the court would remand, or send back, the case to the trial Judge, with instructions to let the mother's friends testify. Having won her appeal, now the mother must go through a whole new trial, possibly in front of the same judge. The fact that she won her appeal does not mean that she will be granted custody; it means only that she gets to have a new trial.
The appellate court will generally not second-guess factual conclusions that the trial judge has reached, because the appellate court does not take testimony or hear witnesses. Rather, the appellate court reads and listens to the arguments of the lawyers to determine if the triaI judge made a legal error that affected the outcome of the trial. If so, in most cases the case will be returned to the trial court to have the error corrected.
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The appellate process takes approximately one to two years. In contested custody cases, once a case has gone all the way through the appeal process and is sent back for a new trial, the circumstances of the case-such as the ages of the children or the financial situations of the parents may have changed significantly. In such cases, having the case remanded can take as much time and cost as much money as starting from scratch.
After any trial, the losing spouse may use the threat of an appeal as a negotiating tactic to induce the winning spouse to give up all or part of what has been won. For example, let's say a judge splits up a couple's assets and gives fifty thousand dollars of the husband's pension to the wife. The husband can then threaten to appeal unless the wife settles the case by agreeing that he has to give her only forty thousand dollars. Then the wife has to decide whether to pay lawyers to fight the appeal for the next year or simply give up part of the pension and thus put an end to the legal battle.
If the wife refuses to settle and the husband loses his appeal, the wife will still be out the legal expenses of fighting the appeal. Although she may succeed in having the court order the husband to pay her legal expenses, there is no guarantee that this will happen. Moreover, because there is a possibility that the husband might win the appeal, the wife may not be able to get her hands on any of the pension funds while the appeal is pending. Thus being able to get the funds immediately and not having to litigate an appeal may make it worthwhile for the wife to give up the ten thousand dollars.
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As you can see from these examples, it is important that your lawyer understands the appellate process, especially in a highly contested case. Your lawyer needs to know enough about appeals to be able to preserve your case for appeal and also to be able to use the threat of appeal to soften the blow of a loss. If you win your case, your lawyer will advise you how to handle the threat of an appeal. Should you give up part of your winnings and settle? Or is your spouse just bluffing? If you choose not to give in, how much would an appeal cost? What are the chances of losing? etc.
Mediation and Counseling
In some jurisdictions, before the trial preparation or discovery process can even begin, the law requires that both parties participate in counseling or attempt to resolve their differences with a trained mediator. Counselors and mediators are not always funded by the state and will therefore charge for their time, usually at rates similar to lawyers.
The idea behind mediation and counseling is to have trained professionals help defuse the emotional tension between the two parties and find areas of agreement that the parties may not have realized existed. Whether or not to engage in counseling or mediation, or both, is a decision that deserves serious consideration. If these methods do not result in a settlement, all the hard work and expense of litigation still lie ahead. If your would-be ex insists on being in total control or is abusive, you might be better off bypassing these alternative forms of dispute resolution if you can.
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Spouses bent on prolonging the agony of divorce can and do manipulate the system into a form of financial and emotional torture for their former partners. Savvy divorce lawyers know how to wear down the other side-emotionally, financially, and physically-by scheduling expensive mediation sessions that go nowhere. Should this happen to you, it is important that you have a lawyer who is perceptive enough to recognize and put a halt to such manipulation rather than advising you to participate in counseling or mediation sessions out of a misplaced spirit of cooperation and compromise.
Some states have rules exempting abuse victims from having to participate in mediation or counseling with their abusers. If you have been abused and believe that joint counseling or mediation would merely be an opportunity for your spouse to continue the abuse, make sure your lawyer checks the law to see if you can be excused from court ordered counseling or mediation.
Similarly, issues you deal with in the context of couples counseling or individual therapy in a setting you believe to be confidential-can come back to haunt you in divorce court when the other side calls the therapist as a witness or subpoenas your therapy records and then hires an expert to put a damaging spin on what those records actually mean.
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Suppose your spouse threatens to commit suicide if you don't let your son live with him or her. You go into therapy to try to figure out what to do. You spend months going over the issues with your therapist, trying to reach the right conclusion, and your therapist compiles reams of notes on what was said during those sessions. Later, the opposing lawyer may subpoena your therapy records and provide them to your spouse's hired expert to be interpreted in a damaging way. For example, if your final decision is to give up your son, that act--even though done to prevent your spouse's suicide-can and will be used to demonstrate that you don't care about your son. On the other hand, if you refuse to let your son see that same suicidal spouse because you think your spouse is mentally unstable and could be dangerous to your son, your refusal can and will be used against you to demonstrate that you are trying to deprive your son of his right to a relationship with his other parent.
Throughout the contested divorce process, you will be facing damned-if-you-do-and-damned-if-you-don't choices. The more decisions you make without the direct input of your lawyer, the more risks you are taking. Therefore, if you decide to go into therapy, counseling, or mediation without your lawyer, make sure you first understand the potential repercussions of that decision.
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Masters or Magistrates
In many jurisdictions, in addition to the trial and the alternative dispute mechanisms described above, there is another layer of the judicial system known as masters or magistrates. These people are "junior judges" whose job it is to hear the evidence and make "proposed findings," or recommendations, to a judge. In some cases, using masters or magistrates prolong matters, whereas in others it speeds things up. Discuss with your lawyer whether using a master or magistrate is an option in your case and, if so, whether you should choose to do so.
Since a master's or magistrate's decision is not final until a judge adopts it, going through a trial presided over by a master or magistrate can wind up being an expensive exercise that leads nowhere except to a new trial in front of a judge. It is important that you understand how the system works in your jurisdiction. Even if you win in front of the master or magistrate, don't be surprised to learn that it was only the first round.
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Judicial Indifference
Omnipresent in the arena of divorce and custody is the notion that it takes two people to have an argument and that at any time one person can stop the conflict by giving the other person what he or she wants. Many times, judges allow themselves to be seduced by this simplistic concept. Rather than try to determine who is right and who is wrong, some judges (because of lack of interest or lack of time) will apply pressure to both parties-in the form of verbal abuse, threats of financial sanctions, or sentencing the couple to attend parenting classes at night-until one party buckles under the pressure and lets the other have his or her way.
Lawyers can do little to protect you from this judicial attitude short of keeping you out of the courtroom. And the only way to stay out of court is for your lawyer to prepare so well for court that the other side would rather settle than have a showdown. Don't believe for one minute that all you have to do to get justice is tell your story to a judge. That's just not the way it works.
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Settlement Once the litigation has begun, most spouses begin to figure out that if they could reach agreement, they would save themselves a great deal of money and aggravation. They understand, on some level, that they should settle the case instead of fighting it out in court. On another level, however, they are unable to settle. Why? Emotions are too raw. They distrust each other. One or both want a day in court to prove that they are right. Feelings like these frequently prevent divorcing spouses from settling their cases before going to trial. And when they are able to settle the case, it is often just days, sometimes even moments, before the trial.
Why then and not before? The impending trial, which promises to be expensive and stressful and guarantees an uncertain result, creates an incentive for both parties to work out their problems. Both parties eventually realize that, with a settlement, they will be able to exercise some degree of control over the result. This is not so if a judge decides for them in court.
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With the trial a year away, it is difficult to get the parties and their lawyers focused enough to talk about settlement. As a result, it often takes the same amount of time for a contested divorce to be settled as it would have for that same case to get to trial. This is rarely less than one year and can be as long as several years if appeals are involved.
You mean after all this a contested case can become an uncontested case? Yes...many spouses need to go through almost the entire contested divorce process until they can reach an out-of-court settlement.
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