This article has been a long time coming because I am asked by nearly every person who calls my office – “What do I do?” or “How does this work?” So with that in mind, I decided to create a blog article focusing on the mechanics of the process. This is not a Do-it-yourself divorce or custody guide, though someone seeking a pro se or do-it-yourself divorce may find this very handy.
Do or Don’t –
This is perhaps the most difficult part of the entire process. Someone has to decide to start legal proceedings. A Judge does not just decide one day that you need a divorce or custody papers, and the Judge certainly has enough to keep him or her busy, so the decision has to be made. File or don’t file.
Only a person with a justiciable right can choose. Often a friend or family member helps, encourages, sometimes they even pay for the process but in the end, if it is a divorce, only the Husband and the Wife have the right to file for divorce. If it is custody, only Mom and Dad have the right to file custody (with a few very rare exceptions). In the law, this is called “Standing”. ONLY A PERSON WITH STANDING CAN START A LAWSUIT.
Where do I start?
Once you have decided to file a divorce of custody action you have to tell the Court what you want. This request is called a Petition or Motion. In short, the person who wants something from the Court has to ask for it in writing. This is the Petition or the Motion. This document is served on the other party so they know you want the Judge to do something and more particularly, it advises the other party what in specific you want the Judge to do. Sometimes, but not always, it explains in writing “why” you want the Judge to grant a certain request.
Does the other side have to know?
Yes! I am surprised how often I am asked, “Do I have to tell my spouse I want a divorce” or “Can I get child support without telling the father?” I am sure every one of these request are from well-meaning individuals and most have some fear or concern about how the other parent/party will react. But to put it bluntly, a Judge will not give you any relief unless you show the other side has been provided an opportunity to respond. Which is why the other side is called the “Respondent”. BTW: There is a limited exception to this and it is called an Ex Parte Request but that is a topic for another time.
Respondent has been served – now what?
Beginning the day the respondent has been served, every case takes a unique path to conclusion. A case is concluded when a final and appealable order is issued or the case is dismissed. How you get there is up to the parties. The simple and direct route is to discuss the problem, maybe have a minister, family members or a professional mediate. If the two of you agree, even if it takes some negotiations, then a Final Order can be written and taken to the Court for the Judge to sign.
A more common and more difficult route involves litigation and it can be as expensive and convoluted as one or both parties want to make it. Generally, the Respondent has 20 days to file an answer and theRespondent may or may not file a counter-petition. If either side asked for Temporary Orders the Court will try to hear that request fairly early. The parties then are free to negotiate or conduct discovery (legal method of getting information in a form that can be used as evidence), and every case is encouraged to mediate. Finally, at some point the Judge has to make a decision which may be as easy as granting the “agreed” relief or the Judge can just decide the things you cannot. The case is concluded when the order is signed, unless the case is dismissed which puts everyone back where they were before the first Petition/Motion was filed.