Thinking of getting a divorce?
When people decide to get a divorce, they usually don’t know what to expect. Divorce is a complicated legal process, and it can be full of unpleasant surprises and frustrating delays. A general understanding of what’s likely to happen can help you feel more comfortable at an uncomfortable time.
The following chronology gives a general idea of how the average divorce proceeds. Your divorce may be a little different because of differences among state laws or because of specific issues between you and your spouse. For example, arguments over where your kids will live and how to split up your 401k can make the process more complex. Your attorney can help you understand exactly how your divorce will fit with this chronology-remember, your attorney works for you, and should clearly explain every step of your divorce.
To start off the divorce, one of the spouses gets a lawyer, who writes up a petition (also known as a complaint), a legal document that says why the spouse wants a divorce and how he or she wants to settle financial, custody, and other issues.
The lawyer files the petition or complaint with the court. The lawyer or the court makes sure that the petition/complaint is served on the other spouse, together with a summons that requires that spouse’s response. This usually accomplished by providing a copy of the Petition along with a document called a “Summons” to the Sheriff or a private process server who then serves it on the other party. That party then has 20 calendar days to file a response.
The served spouse has to answer within a certain time (in Florida, the time to answer is 20 days). The answer says whether or not the served spouse agrees with the petition/complaint. If he or she doesn’t answer the petition/complaint, the court assumes that he or she agrees to its terms and a default is entered by the Clerk. The Answer (also called a response) says how the served spouse would prefer to deal with divorce decisions.
The couple then begins the” discovery” process in which they exchange documents and other information about issues such as property and income. By examining this information, the couple, the attorneys, and the court can decide how to divide up property and how to deal with child support and alimony.
Many times, the couple can voluntarily resolve all their issues through mediation or settlement. In the 19th and 15th Circuits (Martin, St. Lucie, Okeechobee and Palm Beach Counties), almost all cases are referred to mediation prior to the Court ruling on temporary matters or trying the case. This office strongly believes in the mediation process and attempts to use it whenever possible. Even if the parties can only agree to a partial settlement, that partial settlement can greatly reduce the attorney’s fees and costs that can be incurred by the parties.
If a settlement is reached, the settlement agreement is shown to a judge at an informal hearing. The judge will ask a few basic factual questions and whether each party understands and chose to sign the agreement.
If the judge approves the agreement, he or she gives the couple a Final Judgment that requires both parties to comply with the terms and provisions of the agreement. If he or she does not approve it, or if the couple does not reach an agreement, the case will go to trial.
At trial, the attorney presents evidence and arguments for each side, and the judge decides the unresolved issues, including child custody and visitation, child and spousal support, and property division. Once the judge has reached his or her decision, the judge grants the divorce.
Either or both spouses can appeal a judge’s decision to a higher court. But, it’s unusual for an appeals court to overturn a judge’s decision. Also, remember that settlements usually cannot be appealed if both spouses agree to their terms.
It’s hard to say how long all these steps will take in your case. The entire process can take from as little as a few months, to as long as several years. Generally speaking, the more the couple can cooperate and agree to reasonable compromises, the smoother and faster the divorce will go.
This publication and the information included in it are not intended to serve as a substitute for consultation with an attorney. Specific legal issues, concerns, and conditions always require the advice of appropriate legal professionals