Understand the Legal Process
The legal process of divorce can be daunting, and can many times stand in the way of those considering a divorce. Here is what to expect when filing for divorce.
File an application for divorce. Your lawyer will file a petition or application for divorce, on your behalf, which lists what you are asking for as the petitioner, or plaintiff, and explains the reasons for the divorce. Your spouse will have an opportunity to respond by having his lawyer file an answer or schedule an appearance. The paperwork can be served to you by a process server or by the opposing attorney.
Set the court date. A court date will be set for an initial appearance, and both you and your husband must appear in court at that time. If you are requesting a temporary order regarding an issue such as where the children will reside, if child support will be paid and how much, or who will live in the home, that business may also be handled at this time. The lawyers may meet together out of court to try to reach a settlement, or the court may recommend that you and your husband go to mediation. In some states, protocol requires a married couple seeking a divorce to go to mediation before going to court.
Get your plans approved for after the divorce. Let your lawyer know if you plan to move during or after the divorce. If your state requires a consent form and you are unable to get your former husband to sign one, your lawyer will send a letter with your intention to move to the court as well as to opposing counsel. If your physical safety is a concern, your attorney will explain that your new address must remain concealed from your abusive ex-husband in the change of address letter filed with the court.
The role of mediation. Mediation is a way of resolving the dispute between the parties that is facilitated by a neutral third party who is called the mediator. This process increases the control that the parties have over the resolution, which may be preferable to having a judge make an arbitrary decision. It is less costly and takes less time than going to trial. If you do not settle in mediation, a trial date will be set. You are entitled to have your day in court, and it is your legal right to appear before a judge. A trial may be unavoidable if your husband is unreasonable in mediation. I recommend that you and your lawyer remain in a separate room at mediation from your husband and his lawyer. The mediator can go back and forth between the two rooms to negotiate and finalize the agreement. This will reduce the stress levels for all involved. It is less likely that your husband will be able to intimidate you at this important time if he is not sitting across the table from you.
Know your state-specific divorce laws. I live in a no-fault divorce state, but in some states it is possible to argue that fault grounds, such as abuse or adultery, should influence the division of assets and whether alimony is justified. Be sure to ask your attorney about the laws in your state.
The ‘discovery’ phase. The next step in the legal process, whether you go to court or do mediation, is called discovery, where essential information is obtained to prepare for trial. Early in the process, your lawyer will send his lawyer interrogatories: a list of questions your lawyer wants to be answered about finances, facts, allegations, and evidence. He will also send a request for documents, which may include, but is not limited to, bank and brokerage statements, phone records, deeds, mortgage statements, W2 forms, 1099 forms, and tax returns. Your spouse’s attorney will also send interrogatories and a request for documents to your attorney.
Stay on top of the process. You may need to press your lawyer to send these official mailings, especially if he or she is busy with other cases. If he or she hasn’t told you the mailing date, send an email to him/her, with a copy to the paralegal, requesting that they send out interrogatories that week or the next, and to notify you of the date afterward. These forms are standard, so you will need to get a very good reason from the paralegal if there is going to be a delay.
Follow up. A week after the due date, if your husband has not responded, send your lawyer’s paralegal an email that your husband is in contempt of court and request that they send the opposing counsel an email that you will be filing a petition for contempt very soon if you don’t receive a response within days. Answer the interrogatories that you receive as soon as possible. A prompt response will help move the divorce process along. In my state, the opposing party has sixty days to respond to an official request.
Read all documents thoroughly before you sign them. There will be a lot of paperwork that your lawyer will have you sign, and you will have to swear that the facts in those documents are true. Be sure to read each document carefully and double-check it for accuracy before signing. Make sure that the numbers in the financial statements are correct and that everything you know about is included. Let your lawyer know of any inaccuracies, untruths, or misstatements you see in your husband’s documents as well.
Timing. It should be possible to get a divorce within a year of filing, but this may not happen unless you press the issue. After the interrogatories and requests for documents have been answered, give your lawyer a list of some reasonable dates with the instruction to get the dates set for mediation and trial.
Prepare for depositions. Be prepared for depositions, which is sworn testimony given in the lawyer’s office and transcribed by a stenographer. The lawyer will ask the opposing party questions in order to prepare for trial. When it is your turn to give your sworn testimony and be questioned by your ex-husband’s attorney, observe the same protocol that you would when going to court- dress appropriately, arrive on time and prepared, and be courteous. Only answer the question asked and do not elaborate or go off topic. Get a good night’s sleep the night before the deposition, and have your lawyer give you a coaching session beforehand if you are nervous about how you will come across.
Common law marriages depend on state-specific laws. If you have a common-law marriage, you will go through the same divorce procedure as if you were officially married. If you haven’t met your state’s requirements for a common-law marriage, you can just separate, as a legal dissolution of marriage is unnecessary. Custody and child support issues will be handled in family court and the division of assets will probably occur in small claims court. A lawyer can guide you through this process.
Chances are very high that your divorce will be negotiated between the lawyers, you, and your husband here or in mediation. But it is important to be prepared to go to trial in a courtroom in front of a judge, just in case you cannot agree on terms.
Breaking Bonds is dedicated to your specific needs as an abused woman, and we offer free holistic support as well as practical guidance to help you through this difficult time. Download the free 11 STEP PREP Guide here to get started, grab a copy of Breaking Bonds: How To Divorce and Abuser & Heal, and check out our full list of resources for complete support during the process of your divorce. We are with you.
Rosemary Lombardy is a financial advisor with over 35 years of experience, and the founder of Breaking Bonds, a comprehensive resource platform for abused women. Although her professional expertise is in financial matters, her perspective on marital abuse, divorce, and recovery is deeply heartfelt and holistic. She draws on decades of personal experience, as well as the experiences of others, to help inform abused spouses so that they will become empowered to leave their abusers and begin to heal.
Rosemary Lombardy's new book, Breaking Bonds: How to Divorce an Abuser and Heal - A Survival Guide is available on Amazon, Barnes & Noble, and anywhere that sells books.