In a contested divorce, the spouses are unable to come to an agreement on issues such as child custody and division of marital assets. In such situations, the litigation process takes longer to conclude. When spouses can’t agree they either hire a divorce mediator or, go before the court and the court will make the final decision on all issues they were not able to negotiate.
Legal Steps Involved in a Contested Divorce
- Meeting With an Attorney
- Divorce Petition Served Upon Your Spouse
- Your Spouse Responds to the Petition
- Discovery Process
- Divorce Settlement Negotiations
- Divorce Court/Trial
- Post–Trial Motions
Below is a brief description of each step you will go through during a contested divorce
1. Meeting With an Attorney:
Once you have met with a few attorneys and decided which one best suits you, he/she will interview you thoroughly. During this interview, your attorney will gather all documents pertaining to marital assets, children of the marriage and any other issues you feel are pertinent. He/she will then determine what he/she feels you are entitled to, will prepare your divorce petition and file it with the court.
This entails a lot of work on your part. You’ll need to gather all pertinent documents. Determine what you want your attorney to ask for hin the divorce petition pertaining to child custody, child support, alimony, division of marital assets and how marital debt will be split.
You will also want to read and keep copies of all paperwork your attorney files with the court.
2. Divorce Petition Served Upon Your Spouse:
Once your divorce petition is filed with the court your attorney will then serve the petition on your spouse. Your spouse can be served in person, by mail or by a deputy sheriff.
If you are not able to locate your spouse a notice will be published in local newspapers, and you will then have to wait a pre – determined amount of time before moving ahead with the divorce.
In most jurisdictions the courts are responsible for making sure your spouse is served with the filed divorce petition. This is normally done by a process server or a sheriff’s deputy. If it is your responsibility to make sure your spouse is served you will need to get instructions from your attorney on how to do this.
3. Your Spouse Responds to the Petition:
Most state divorce laws require your spouse to respond to the petition for divorce within 30 days. If your spouse does not respond within your state’s specified time limit, he/she is in default and you may obtain a default judgment of divorce. If your spouse does respond, your case will proceed on to the discovery and settlement stages.
Discovery is the part of the process where spouses are able to obtain detailed information from each other about marital assets, income, custody and any other issues relevant to their case. This is done through written interrogatories, document requests, and depositions. During discovery, the spouses are able to request temporary orders for child support or alimony from the courts.
There is also a time limit on when you and your spouse will need to respond to any discovery requests. It isn’t unusually for one or both spouses to miss that deadline in an attempt to slow down the divorce process or, in some cases, an attempt to hide assets. It will be your job to make sure your attorney keeps on top of a spouse who doesn’t respond in the allotted amount of time.
Most judges will encourage the spouses to come to an agreement before the final court date. The judge may order the spouses to go to mediation where a third party attempts to help them negotiate any unresolved issues. If the spouses are unable, to come to an agreement the discovery phase will continue and the case will be scheduled for divorce court.
During your divorce trial, each side will be able to put on witnesses, cross-examine the other side’s witnesses and make closing arguments.
Your state’s divorce laws and the number of divorce cases in your local Family Court System will determine how quickly your case goes to trial. The judge will hear both sides of the case at trial and will then come to a decision regarding all issues. The length of time it takes the judge to write a final order is directly related to the complexities of your case.
During a divorce trial you will be able to have your attorney call witness. You may have character witness or, if there are custody issues witnesses to help you prove your children would be better off in your custody.
7. Post-Trial Motions:
After the trial is over and the judge has signed his/her order, either party is entitled to file a post-trial motion for relief from the final judgment. The party typically has 30 days after the order is signed to file a post-trial motion. The other party has 30 days to respond to the motion.
A post-trial motion if approved by the judge would allow you and your attorney to argue why you believe a rulling by the judge is unfair.
If post-trial motions are denied a notice of appeal can be filed within 30 days of the final judgment or 30 days after the post – trial motion is denied. The party seeking the appeal will have a few months to file the lower court record with the appeals court and file his or her brief. The other party will then have about a month to file a response brief. In most states, the parties will be granted oral argument, and the court will then make its final decision. If the case is reversed, the appellate court will send it back to the trial court for further proceedings. If the case is affirmed, it is over.
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