Divorce Process - Contested Divorce and Trial
Petition, Summons, Discovery, Temporary Orders & Divorce Process
Sep 11, 2009
Before talking to an attorney, it can be helpful to know a little about the legal concepts and terminology used. Some examples are: Contested divorce, divorce litigation, petition, summons, response, motion, and temporary orders. It is impossible to know everything about these concepts, but a cursory understanding may make the divorce process easier.
This article does not constitute legal advice. It is important for both husband and wife to consult with a family law attorney early in the divorce process, as this may help his or her long-term financial well being.
Other reasons why it is important to talk with an attorney are that divorce laws are different in every state, laws can change over time, and each family’s circumstances are unique.
Contested Divorce
When a couple is unable to agree, in writing, on important issues such as child custody or division of assets, they will need to go before the court. And, the court will make the final decision about areas of disagreement.
A divorce cannot be finalized until all major issues are resolved. Here are some of the typical areas of contention:
- Division of Property
- Alimony or Spousal Support
- Child Custody
- Child Support
- Child Visitation
Alternative Dispute Resolution
Couples who cannot agree may need to continue through all phases of divorce litigation, or they may use (voluntarily or by court order) one of these methods for alternative dispute resolution:
- Mediation
- Arbitration
- Collaborative Divorce
A good attorney will be able to decide which option is best for one’s individual situation. If there is an agreement, through dispute resolution or any other negotiation, then the divorce will not go to trial. If there is no settlement, then the divorce process continues.
Divorce Litigation
Every state has a different system; however the basic principles in the divorce proceedings are relatively uniform. Litigation usually includes the following components or some variant:
- Petition: Formal request that will start the divorce process.
- Summons: A way to legally notify one's spouse that he or she is being sued for divorce.
- Response (Answer): Spouse acknowledges that he or she knows that the divorce process has begun.
- Motion: A formal request for a judge to order an action before the trial. One example would be a restraining order.
- Discovery: Each side collects information. This involves requests for the other party to produce documents, and is important in cases where a spouse may be hiding assets.
- Hearings and Temporary Orders: Sometimes a situation must be resolved immediately by a judge, for example, a decision about which parent will have temporary custody of the children or for making sure that a spouse will not sell off assets. These temporary orders may change when the divorce is final.
- Trial: A court appearance before a judge, where there will be an examination of facts and law.
- Judgment: The final decision about the areas of disagreement, such as child custody or division of assets.
No one is expected to know all of this, and some states will use different terminology. It is, however, nice to have an overview of what could happen in a divorce.
Information from this article is not intended to be a substitute for advice from a lawyer, financial planner, therapist, or other professional. Please consult a lawyer or other professional for specific advice. For more information see the link below.
Read more articles about Divorce and Life After Divorce.
Resources:
Ciciliano & Associates. "Divorce - An Overview", 2009. cicilialaw.com
Nolo's Plain-English Law Dictionary. Nolo Legal Solutions for You, Your Family, and Your Business, 2009. nolo.com
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