The Process of Divorce
Click on a topic below to read more about the divorce process. Click this link to read more about Types of & Grounds For Divorce.
The Divorce Process
The first step in a divorce proceeding is drafting and filing a document called a “Complaint.” (Actually, the first step is exploring all of your options shy of a divorce, including marriage counseling, mediation, time out, etc. The next step is to discuss with your attorney the advisability of, problems with, costs of, etc., a divorce. Only when the difficult decision to divorce has been made does any of the following stuff apply.)
The Complaint sets out the vital statistics of the parties and of the marriage, states the grounds for divorce, addresses certain technical matters, and then asks the court for a divorce and anything else you might want (custody, support, property division, etc.). If you and your spouse cannot agree on something that you want, then you must ask the court for it in the Complaint. If you don’t ask for it up front or in later written pleadings, the court cannot give it to you. If, when you review the Complaint the wording seems strange, remember that it is a formal legal document and much of the wording is required by law. However, the document should still make sense to you. If you see a mistake, let the attorney know. We made a mistake once (gasp!!). It was in the date of the parties separation, and we mistyped the year–1997 vs. 1996. When we discovered the mistake at the depositions, the client said “Oh, I saw that when I signed the paperwork. I thought you meant to write it that way.” We started the divorce all over again (at our expense, since it was our mistake), but the client lost time. Please, if you see a mistake, tell us. We are all human.
The person who files for the divorce first is the Plaintiff (or sometimes “Petitioner”). The other spouse is the Defendant (sometimes “Respondent”). Once served with the divorce papers, the Defendant must respond to the Complaint by a formal document known as an Answer. The Defendant may also want to complain that the Plaintiff too (or only) was at fault. To do so, the Defendant files a document called a Cross-Complaint).
There are limited tactical advantages for the person who files first, but in most cases, they are not significant.
Once the divorce papers have been drafted and signed, they are filed with the proper circuit court (see “Venue” requirements, below, for a discussion on which is the proper court in which to file a divorce case), and a file is created by the clerk. Since every defendant is entitled to be notified of any lawsuit filed against him or her (that is only sporting, isn’t it?) the next issue is “how is that notification accomplished?” Generally, the papers are sent over by the clerk of the court to the sheriff of the jurisdiction where the defendant resides, and the sheriff, or a sheriff’s deputy, drives over to the house and serves the divorce papers.
The papers served are typically the Complaint (discussed above) and a separate notice prepared by the clerk of the court called a Subpoena. Together they are called “process,” as in “service of process.” The Subpoena is a document that advises the defendant that a divorce suit has been filed, that he or she has been named the defendant, and that the defendant has 21 days to file a response (an answer, a defense or other proper legal pleading) to the Complaint.
The sheriff can serve the papers either “personally” (i.e., the defendant is at home and is handed the papers in person) or through one of several substitutions to personal service:
- (a) on a family member of the defendant’s household who is over 18 years of age who regularly resides in the household.
- (b) by posting on the front door, so long as the place where the sheriff has been sent is the defendant’s “usual abode.”
If the defendant cannot be served (because he cannot be found and a “usual abode” cannot be determined), or if the defendant lives out of state, service of process can be accomplished through a newspaper ad following a court directive called an “Order of Publication.” The actual ad is run in a local newspaper. If the defendant lives out of state or just out of the area, or never reads the newspaper in which the ad is published, he or she will not likely see the ad. But that’s okay, because in addition to ordering the ad, the court will also mail a copy of the process (the Complaint and the Order of Publication) to the defendant at the defendant’s last know address as provided by the plaintiff. As a practical matter, the defendant still will not be aware that the divorce action is happening. For this reason, the law limits the relief (the stuff you can get) that can be gotten in a divorce pursued via an Order of Publication to just the divorce. Alimony, custody, child support, property division, and similar items that are beyond mere “status” of being married/not married, are beyond the power of the court to award if the defendant is “served” via an Order of Publication.
Defenses to the grounds for divorce that might be stated in an Answer include:
Denial:
It didn’t happen, or at least I don’t admit that it did. The accusing party always has the burden of proving the alleged grounds for divorce. This is akin to pleading “not guilty” in a criminal or traffic court setting.
Condonation:
It happened, but I have been forgiven for it. This is usually proven by showing that you and your spouse had sexual relations after the action (adultery, desertion, act of cruelly) that constituted ground for divorce was alleged to have occurred.
Recrimination:
Conduct by the accusing spouse that is of the same character and nature as the conduct that is alleged. The proverbial “pot calling the kettle black” defense. “Well you committed adultery too.”
Reconciliation:
Getting back together with the intent to live together again. Merely “sleeping together” on a rare occasion during the separation period does not equal reconciliation. Best to talk with your attorney for anything more.
Time Barred:
The conduct alleged is too remote in time (happened too long ago) to be used as a grounds for divorce.
Technical Problems In The Pleading:
Failure to properly allege the jurisdictional or venue requirements or other baseline elements for a divorce. Because it affects the very core of our societal make-up, divorce law has become a very precise and somewhat technical practice, requiring strict pleading requirements which, if not met, could result in the case being dismissed.
For a Virginia court to be able to hear your divorce case (i.e., to have jurisdiction over your divorce), you (or your spouse, or both) must have been residing and domiciled in Virginia for the six months just before, and including, the day the divorce suit is filed. Special rules apply to members of the military: to be eligible to apply for a divorce in Virginia, the military member must be stationed and actually reside in Virginia for the 6 months just before the divorce suit is filed.
The law requires that the divorce case be brought at a location that makes sense and that is fair to the parties. The term of art used by attorneys and judges to describe this location is called “venue,” and the venue must be a proper one. In Virginia, a divorce suit is properly brought in the Circuit Court of the city or county where the Defendant lives or where the parties last lived together. If the Defendant is not a Virginia resident (as therefore presumed not to really be interested in which particular city the suit is brought), the case can be filed in the Circuit Court of the locale where the Plaintiff lives. (Generally, when the Defendant lives out of state, no property or support rights can be affected by the divorce. A few somewhat complicated exceptions exist to this proposition, and you and your attorney need to discuss these exceptions in the appropriate circumstance.)
After the parties have set out their respective claims, a process called “discovery” usually follows. Discovery can include written questions, known as “Interrogatories,” or demands for certain papers or documents, know as “Request for Production of Documents.” Discovery can also include a request for face-to-face questioning of you or your spouse, or others, before a court reporter known as a “Deposition.” You will hate the discovery process. It will cost you a lot of money, and it will take up a lot of your time. But it is an essential aspect to the proper processing of a contested divorce. If you understand at the beginning as to why discovery is done (for both parties to find out, under oath, as much as they can about each other’s assets and worth) then you will not be so distressed as you are going through it.
Before, during and after the discovery takes place, negotiations to try to resolve matters will be constantly occurring. This is a good thing. There are clients who say that they will not negotiate at all with their spouses. This is a bad thing. Everything is negotiable. There is a funny saying that I did not conceive, but which we use often in our office. It goes like this: “Send your kids to college on your money, not mine.”
Negotiations can lead to a settlement on issues merely pendente lite (remember that term?), on some issues and not others, on all issues, and in the rare case, on no issues. Negotiations are aimed at reaching a deal that both parties think the judge is going to order them to live by. If you (or your attorney) think the judge will give you more than the current offer, you can reject the offer and still be negotiating in good faith. Negotiating does not mean conceding, although compromising certain items is a essential aspect of the process). It means talking and working toward resolving things where a resolution is possible. Negotiating is not “I expect to get everything that I want, and not a penny less.” Even if you somehow got everything you asked for, you probably spend more money on attorneys fees, or more on aspirin for the headaches you created for yourself, than it was worth. Remember: if the sofa you “must” have is worth $200 and the attorney’s fees will be $500 to (maybe) win the sofa for you in court, you are probably better off giving up the sofa, saving the 500 bucks, and buying a brand new couch.
As you go through the negotiation process, remember these
undeniable truths:
- Life is not always fair.
- The judge will not see things precisely your way.
- No party is 100% at fault.
- There are two sides to every story.
- Even Attilla the Hun had his good points.
- You can never cram the events of your entire marriage into a one day trial (especially since your spouse is entitled to half of the time to present his/her side).
- While adultery is offensive to the judge, and while the judge may understand that it devastated you personally, the judge has heard cases like yours dozens of times before. It is unlikely that your case is so different from those the judge has already heard as to cause the judge to vary from the pattern he/she has already developed in similar cases (and which your attorney had been twisting your arm to recognize.)
- It is easier for the judge to award each of you fifty-percent of the marital assets than to articulate a reason not to.
- It is easier for the judge to divide the difference between your and your spouses last offers than to articulate a reason not to.
- A fair resolution to a case has generally been achieved when both parties are a equally miffed.
- Things always get worse for both parties as a result of a divorce, at least for a while.
- Financially speaking, two cannot live as well apart as they were living together. And the judge will not take all of your spouses income and give it to you just because you may be the totally innocent spouse.
- You are almost always better of settling than litigating.
Successful negotiations hopefully will result in a Separation/Property Settlement Agreement which will be submitted to the court at the appropriate time for approval. (Approval is a ‘given’, absent guns to the head at signing time–or lies in the discovery process.)
Mediation is a process of conflict resolution wherein the two parties meet to work out some, all, or most of their problems face-to-face in the presence of a trained mediator. We like mediation. Mediation is a much better method for resolving disputes (assuming that the parties are on equal negotiating footings) than is mud-slinging, name calling, spending all of your money on an attorney, and lots of time in court. Besides, who knows more about what will constitute a fair settlement and what will work for the two parties than the parties themselves. The mediator’s goal is to enable the parties to focus on the real issues that separate them. Early in the mediation process, the walls may seem insurmountable, but that may be only because emotions (and self-righteousness) are clouding the issues. Skilled mediators know how to help the parties get around these road-blocks and to focus on the true issues.
Where children are the subject of controversy, the court can, and lately usually does, order the parties into at least one mediation session to determine if this method of conflict resolution will work. If you are ordered into mediation, do go with an open mind. It can be a wonderful process, and think of all of the money you will be saving to spend on yourself and the kids.
There are several good local mediation services listed at the bottom of this article in the “Links” box who you may wish to check out.
Despite the affinity we have for mediators, we feel that the actual Separation Agreement should be written (or at least reviewed before signing) by an attorney. The Separation Agreement is an exceptionally important legal document that in our humble opinion does justify the expense of getting an attorney involved. Plus, you will get a “second opinion” about whether your agreement is reasonable and if important topics were overlooked. (An opinion from attorney at this stage should only be to determine reasonableness, not “Can I do better than this in court.” Sometimes a judge will award a party more than was achieved through successful mediation, but that does not mean that things are better.)
Here are more things to read about and ponder: