In the strictest legal sense of the word, a “divorce” is the decree that is entered by the court officially dissolving the marriage of two people. In reality though, most people who have been through a divorce can tell you that it entails far more than the piece of paper it is printed on. In truth, to get to that point where you receive the paper granting your divorce, you must successfully negotiate a particular legal path to get there. That legal path is the divorce process, the actual procedural route you take to move toward obtaining your actual divorce decree.
The details of this process may differ from state to state, but in the majority of cases, divorce involves certain steps in a common order. Those steps include:
- Filing a complaint: The complaint is considered as the official “beginning” of the legal process. Even if you and your spouse have been able to agree on the important issues between you in an amicable way, all states still require that a complaint (also sometimes called a “petition”) be filed with the court. The spouse who files the complaint is considered the plaintiff, or petitioner, in the case, while the other spouse becomes the defendant, or respondent. The complaint includes any grounds that exist for your divorce – though all 50 states now have “no-fault” divorce, meaning that no specific reason is necessary. The timing of filing the complaint is often dependent upon the jurisdiction in which you live. Some states require a period of separation prior to filing, while others consider separation to begin at the time of filing.
- Serving your spouse: After a divorce complaint has been filed, it must be officially “served” on the other spouse. Some jurisdictions allow one spouse to serve the other via certified mail, while others require a sheriff or official process server to make the service. Still other states, North Carolina included, allow for one spouse to sign a document that waives the need to officially serve the divorce papers. Once a complaint has been filed and all parties are served, the responding spouse has a limited period of time (usually between 20 to 60 days) in which to file a response. Filing a response is always important, because it is an opportunity to let the court and the other party know specifically which items in the complaint you agree or disagree with. After doing so, the case is officially considered to be underway.
- Addressing any temporary support issues: From the time the complaint is filed until the official divorce decree is entered, life of course goes on. Financial responsibilities continue to exist, mortgages need to be paid, and children need to be supported. To ensure that these needs continue to be met during this interim period, most states have stop-gap measures to ensure that necessary support continues to be provided. In North Carolina, for example, a request for temporary child support can be one of the first issues addressed in a case, as could a request for temporary alimony be entered, to ensure that necessary bills continue to be paid. An attorney will be able to better explain what temporary support measures might be available in your particular circumstances.
- Conducting discovery: Discovery is the broad term used for the “information gathering” phase of a case. This is the phase where the parties send interrogatories (questions seeking answers or information), and requests for production of documents to one another, as well as providing financial disclosures or affidavits. All of this information helps to ensure that the parties have all necessary information to address the issues in their case in a way that is ultimately satisfactory and fair to everyone involved.
- Settlement negotiations: After the case is underway and necessary information has been gathered, many couples often choose to work together, cooperatively and with open communication toward resolving the issues between them. While this is not always possible, it is always at the very least worth the effort. There are a number of alternative dispute resolution methods available, including mediation, collaborative law, lawyer-led settlement negotiations, and others. Working together toward agreeing upon how to resolve their issues is often far more satisfactory to all parties involved in the long run than having the issues decided by a court, and is an option that should be pursued when possible. If the parties are able to come to an agreement on the issues between them, they can have their attorneys draft a settlement agreement expressing their wishes that can later be approved by the court and incorporated into their final divorce decree.
- Trial, if necessary: If the parties are unable, for whatever reason, to resolve the issues that exist between them on their own, they can choose to have a traditional trial before the court, in which each side presents evidence and argues their case. After they have done so, the court will enter a decree deciding those issues and granting the divorce. While this is the best option for some couples who simply cannot get along and work toward resolving their issues together, it does mean that they ultimately have less say in how the issues are finally determined, and that they must later return to court when they wish to have any modifications made to the order.
- Entry of the final divorce decree: After the foregoing steps have been completed, the court will review your case, your proposed settlement agreement, or its decision on the issues between you, and if everything is in order, enter a decree officially declaring you divorced. This decree is served upon all parties, and officially entered by the court, thereby dissolving the marriage between them.
Clearly, while a “divorce” is technically an official court judgment on a piece of paper, in reality it is far more. It is a process – often a complex and lengthy one. During that process, you need an experienced attorney on your side – one who can guide you and help you work toward the best results in your case for yourself, and for your family. At The Law Office of Dustin McCrary, doing exactly that is our specialty. We look forward to helping you soon!
Because divorce involves the division of property and, potentially, alimony, some states require you to complete a financial disclosure or affidavit. You may need to file this information with the court or serve it on your spouse or both. This helps ensure that everyone is aware of all financial details prior to the dissolution of the marriage, after which it may be difficult or impossible to address any inequity.
In an uncontested divorce—once the divorce complaint, response, and any required financial forms are complete—the spouse who filed the complaint, or his or her attorney, will need to complete some additional forms to prepare for the finalization of the divorce. This will include a divorce judgment that the judge will review and, if all is proper, sign.
In some states, there is a required period of separation between the filing and the granting of the divorce. In others, if you have met the requirements (one of which may be a period of separation), the court will hear your case fairly quickly (thirty to sixty days). When the date comes for your divorce to be reviewed by a judge, you or your attorney may need to appear in court. If everything is in order, the judge will sign your divorce judgment or decree. In order to truly finalize the divorce, the filing party or their attorney may be required to file this document and serve it on their spouse.