Survial Manual For Women
If you're like most people, a divorce will be the first event that brings you in front of a judge. This section will tell you what you can expect during a divorce trial. We'll go over some of the alternatives to a trial, and outline other choices you have - options that may be easier, cheaper and still answer the challenges you're facing.
1. What is a divorce?
A divorce is a civil action to terminate a marriage. It is also called Dissolution of Marriage.
2. Do we both file for divorce?
Only one spouse need file. Or both can file as co-petitioners. The person who files is called the petitioner or the plaintiff. The spouse who is served is called the respondent or defendant.
3. Where can I file for divorce?
Most states require that one of the parties be a legal resident of the state for a certain period of time before it will grant a divorce. This means that you may be able to choose where the case will be heard. Talk to an attorney about the possible choices you have.
4. Can we get divorced without an attorney?
Yes, but it is not recommended. If you have agreed on a final property settlement, have an attorney for each of you look it over and put it into legal language.
5. Can we both use the same attorney?
It is not recommended. If you do use your spouses' attorney, remember that this attorney represents your spouse, not you, if the going gets rough.
6. What are the grounds for filing for divorce?
Although the specific label varies from state to state, most states now permit a divorce if the marriage is "irretrievably broken." Other terms used are "irreconcilable differences" or "incompatibility." This is a "no fault" divorce.
7. What does "no-fault" mean?
It means that it is not necessary, or permitted, to show that one party or the other did something wrong, or was "at fault", such as committing adultery.
8. What if my spouse won't give me a divorce?
The judge is the person who grants a divorce, not your spouse. Once you have filed for divorce, your attorney will serve a copy of the summons and complaint on your spouse. If no answer is filed within the time permitted by law in your state (for example 30 days) you will probably be granted a divorce by default. If your spouse contests the divorce action, a hearing will be set during which the two of you can testify and the judge can decide what the truth is.
9. What if my spouse is physically abusive?
Seek help immediately!!! You owe it to yourself and your children to resolve this before someone is seriously hurt.
10. Where should I go for help?
Call your local mental health facility or crisis line for assistance. They can make the necessary referrals. If you are afraid of serious bodily harm, you should call the police.
11. How long does it take to get divorced?
That varies from state to state. In some states, it takes 90 days after filing which is called the "cooling off period".
12. Then what?
If the divorce is friendly and a settlement is reached, the paperwork is filed and the divorce is complete. This is called the permanent order. If an agreement is not reached, a court date is set and a judge or other court official hears the case.
13. What if we want to settle out of court but we can't quite reach an agreement?
You can consider arbitration, negotiation or mediation.
14. What is arbitration?
Arbitration is the hiring of a private judge to hear your case. The advantage is getting a date more quickly as opposed to waiting for a court date.
15. What is negotiation?
In negotiation you may have 4 parties present: both spouses and each of their attorneys. A discussion is held until an agreement is reached.
16. What is mediation?
The 2 spouses meet with a neutral third party who is a trained mediator. The mediator does not give legal advice but gives legal information to help the two spouses reach an agreement. Mediation should be used when you believe the two of you can reason things out and you are not hostile toward each other. It can be viewed as an alternative between doing it yourself and going to court.
17. What if we agree on everything except how to divide up some of our property. Does the judge need to hear all the details of our case?
No. The judge only needs to hear the unresolved issues and make a ruling on that part. This can turn a 1 or 2 day trial into a 1 or 2 hour trial.
18. What are temporary orders?
Temporary orders tell what happens between the time the divorce is filed and the time that it is finished regarding child custody, child support, alimony, etc.
19. What are permanent orders?
Permanent orders are the final orders issued by the court which are binding on both parties and end the divorce negotiations. The divorce is now final.
20. What is court trial like for a divorce?
You will each be present with your attorneys. There will be opening arguments and closing arguments and direct examination and cross examination of witnesses called by each side. There may also be expert witnesses who have been ordered to appear.
21. What is direct examination?
It is when the attorney who called the witness asks the questions.
22. What is cross examination?
It is when the opposing attorney asks the questions.
23. What is an uncontested case?
An uncontested case is one in which the respondent does not oppose what the petitioner wants.
24. What is a deposition?
A deposition is the taking of testimony in preparation for the trial. Usually both attorneys, the witness and a court reporter are present.
25. What is discovery?
Discovery is the process of obtaining information, including documents, from the other side. For example, information about your spouse's checking account or retirement plan could be obtained through discovery.
26. What if I don't agree with the Judge's ruling?
In some instances, you may appeal. Your lawyer can explain whether or not it is available in your case and also what it may cost.
27. What should be included in my decree?
Your decree should include everything that you need to completely protect your rights.
28. Can I resume the use of my maiden name at the time of the divorce?
Yes. You may ask for the right to resume your maiden name in the divorce papers your attorney files for you. This is routinely granted by the judge. Even if you do not ask for your maiden name back at the time of the divorce, you can file for resumption of your maiden name after the divorce is granted.
© Carol Ann Wilson, Certified Financial Planner, and Edwin Schilling, III, Attorney at Law, Authors of "Survival Manuals for Men and Women" The above were excerptef from the Woman's Survival Manual."