The decision of separating from your partner is without a doubt a hard one. However, it is essential to know the legal steps involved. The process is usually a lengthy one depending on the complexity of the case. Let's get to know the mandatory procedure every couple has to follow while getting a divorce.
The Course of Action
Step 1 - Petition
Obviously an individual has to file a petition in the court for dissolution of marriage. The person filing the petition is called the plaintiff and the spouse is the defendant. A few basic facts about the individual, his or her spouse and children are set forth in the petition. Further, the grounds of divorce will have to be stated. There are fault grounds (adultery, impotency, physical and mental cruelty, desertion and so on) and no fault grounds to be addressed.
Step 2 - Service of Process
After the petition is filed in the court, it is necessary that the respondent be served with summons and a petition to appear in the court. This is one of the difficult junctures of the process.
Step 3 - Response
The individual's spouse at this juncture gets a 30-day period to respond upon receiving the request. Typically the defendant will hire a divorce lawyer as soon as he or she is sent the divorce papers. In case the spouse fails to file a formal response, there is a provision that the plaintiff may ask the court to enter a default judgment. In such cases, the evidence that the spouse had got the petition but failed to respond is provided. The judge then most probably grants divorce and divides the marital property equitably. On the other hand on filing of the response by the defendant, the divorce attorneys discuss in case temporary support has to be ordered.
Step 4 - Investigation, Negotiation, and Settlement
Here there is a determination of the overall value of the marital estate. This typically entails depositions, subpoenas, interrogatories, and review of financial documents by accounting experts. The negotiations for settlement commence once the value of the estate is determined. Subject to negotiation are issues like custody and visitation.
Step 5 - Pretrial Conference
The divorce attorneys can choose to submit the issues in controversy to the judge in course of a pretrial conference. These are held in the chamber of the judge in charge of the case. Judge here at this point of time makes recommendations for a divorce settlement, after the attorneys put forth their arguments. These recommendations are not at all binding on the divorce lawyers, but these are important as an indication of how the judge thinks the case should be settled.
The final step in the event of both parties not able to reach an agreement is the courtroom drama, that is the trial. With a number of petitions and cases already lined up, the parties could have to wait for as long as 6 months for a trial date. Interviewing potential witnesses, reviewing expert reports, taking depositions and so on are done as a preparation for the trial. These steps are a general outline of the process and may vary slightly from one state to another.