Many times I receive frantic phone calls from individuals who have opened their mail boxes or received a knock at the door that resulted in them being in possession of an unexpected petition for divorce. These people are distraught and unsure of what to do next; if you are one of these unfortunate ones, this blog is for you.
Apparently your spouse is unhappy and has decided to end your marriage. The divorce petition is the first step in what is sometimes a lengthy and emotionally draining process. Fortunately, it does not last forever, and the average divorce proceeding in most American jurisdictions is from 6 months to 1 year. Typically, there are six steps common to each of these divorce cases:
This is where the paperwork in the mailbox or service at home or work comes from; the petition is a spouse's way of initiating the divorce process and letting the court know he or she wishes to dissolve the marriage relationship.
2. Temporary Orders
Temporary orders are orders that are mandated by the county where the divorce is taking place or requested by the attorneys representing the spouses that mandate what things can and cannot be done during the time between when the petition is filed and the actual divorce is granted. The purpose of temporary orders is to ensure that neither party sells property, hides assets, takes debts in the name of the other spouse, or otherwise does anything that would make the equitable division of the marital property more difficult. Temporary orders can be made by agreement or by court order. If by agreement, the parties can be spared the expense of a pre-trial hearing.
3. Discovery of Evidence
This is the information gathering stage of the process. Assets, debts, the monthly expenses of each party, and the status of any children of the marriage are the most important aspects of the process. Divorce is meant to determine what happens to these things, who will be responsible for what, and how to divide that responsibility in a way that is fair to both parties. In order to do this, each side must be forthcoming about their finances with their attorneys and with each other. This may involve you or your attorney preparing a sworn inventory and appraisement that lists all of your belongings and financial obligations, hiring appraisers to determine the fair market value of a house or other real estate, and gathering documents for your attorney to see your full financial picture.
4. Settlement negotiations or mediation
In Harris county, where I often practice, parties are required to attend mediation. Mediation is a private settlement and negotiation conference where each party and his or her attorney attempts to reach an agreement about how to divide the affected property with the use of a third-party neutral known as a mediator. The purpose of this requirement is to allow people the opportunity to settle the matter out of court. Almost 95% of divorce cases are settled, but sometimes those settlements are not made until the case has been set for trial; therefore, it is in your best interest to prepare for your divorce with the mindset that the case may not settle because you have no idea how any given judge will rule on any given day. Preparation is key. If you are required to attend mediation, remember that mediation is different from trial. It is informal, and anything said to the mediator is confidential, so be sure to utilize your mediator effectively. You can use this settlement conference as a way to find out more about the motivations of your spouse and what he or she really wants to get out of the divorce.
5. Trial (if no settlement reached)
If you and your spouse are unable to reach an agreed settlement, your case will go to trial. Rest assured, it is not nearly as interesting or exciting as the trials you have seen on television. Usually, a divorce case is tried before a judge, rather than a jury. Many times, the only people present at a divorce trial are the parties, their attorneys, the judge, and the court reporter. In that case, both sides present their evidence, cross-examine one another, and ask the judge for whatever remedy they want (specific property, custody of the children, etc.). Once the trial is over, the judge makes his or her determination known as a ruling. That ruling is then converted into a document known as an order. A court order is enforceable, and each party must adhere to its specified requirements.
6. Post-trial settlement
After trial, many documents may need to be drafted such as the Divorce Decree, Agreement Incident to Divorce, and any other documents needed to effectuate transfer of title to real estate, motor vehicles, or retirement benefits. This can be a lengthy process.
If you want more information about what to do if you are suddenly presented with divorce paperwork, feel free to contact us at 713-574-8626. We'd be glad to help!
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