Every divorce is different, with legal, financial, and/or parenting issues unique to the individuals whose relationship has broken down. However, every divorce undergoes a similar journey from initiation to closure; whether you make this journey towards separate lives expensively or inexpensively, slowly or quickly, with conflict or kindness is up to you. In this podcast, Editorial Director and Co-Founder Diana Shepherd gives an overview on understanding the divorce process and how it generally works in the US and Canada. You’ll need to speak to a family lawyer to discover how the process might vary in your state or province, as well as how the details and circumstances of your situation may affect your own divorce process.
Facilitator: Dan Couvrette, CEO and co-founder of Divorce Magazine and Family Lawyer Magazine
Speaker: Diana Shepherd, CDFA®, Editorial Director and Co-Founder of Divorce Magazine
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Understanding the Divorce Process and Your Options
Dan Couvrette: My name is Dan Couvrette, and I’m the CEO and co-founder of Divorce Magazine and Family Lawyer Magazine. Our topic today is “Understanding the Divorce Process”, and my guest is Diana Shepherd. Diana is a Certified Divorce Financial Analyst, and an award-winning editor, published author, and a nationally recognized expert on divorce, remarriage, finance, and stepfamily issues. As well as being the Editorial Director and co-founder with me of Divorce Magazine and www.DivorceMagazine.com, Diana has written and edited hundreds of articles about divorce-related issues since 1996. She is the co-author of The IDFA Survival Guide, a book designed to help divorcing couples in the US avoid the common pitfalls and make better decisions.
After telling your spouse you want a divorce, what is the first step in the process?
Diana Shepherd: I think the first step should be to agree on which form of dispute resolution you’re going to use. When most people think about divorce, they think about going to court – but that’s not the only way to resolve your divorce-related issues. Basically, your choices are: litigation, arbitration, mediation, collaborative divorce, and do-it-yourself (sometimes known as “pro se” or self-representation). Let me give you an overview of each one.
First, let’s talk about the Alternative Dispute Resolution (ADR) models: mediation, arbitration, and collaborative divorce. In Mediation, divorcing couples enlist an independent third party, called a mediator, to help them reach a divorce settlement. Both private and court-ordered mediation are designed to encourage couples to voice their opinions and reach a balanced settlement in a neutral environment. The two main benefits of mediation are lower divorce costs and a higher chance of reaching a balanced agreement that is acceptable to both parties. When divorcing parties reach a resolution together through mediation, they are more likely to adhere to the agreement, which simplifies life during and after divorce. However, in order to remain neutral, mediators are unable to provide legal advice or recommendations to either party. In mediation, both parties retain a lawyer to read over the mediated agreement and offer advice before the parties sign it. Even if the mediator is also a lawyer, both parties should still have independent legal advice to make sure they fully understand the legal ramifications of the agreement they’ve created. If you’d like to bypass a lengthy court case and are willing to negotiate fairly with your spouse, mediation may be a great choice for settling your divorce. On the other hand, mediation is usually not recommended in cases where there is a history of abuse or mental illness, if the parties are poor communicators, or if there is any question that the best interests of the children are not being protected. Additionally, mediation is not advisable for couples hoping to rely on a third party to make final decisions for them.
Now, let’s look at Arbitration. Unlike mediation, arbitration removes the task of decision-making from the two divorcing parties and hands it over to a third-party individual. The process of arbitration requires both spouses to meet with the arbitrator without their lawyers’ present, describe their goals and priorities for the divorce settlement, and leave the final decision to the discretion of the arbitrator. In most jurisdictions, the decision reached by an arbitrator is final and binding, meaning the couple has no choice but to follow whatever settlement is decided for them. The benefit of arbitration is that a neutral third party assumes control, ensuring that important choices related to the divorce are founded on fact and logic rather than based on the emotionally charged perspectives of the divorcees. Arbitration is also less expensive than litigation through the court system. If you’d prefer to retain the power to renegotiate and potentially challenge the divorce agreement, arbitration is not the best option for you. Nevertheless, many couples who are unable to agree on important issues choose arbitration as a means to overcome their stalemate. As long as you are comfortable accepting the resolutions prescribed by an unbiased third party, arbitration may be a viable approach to divorce dispute-resolution for you and your spouse.
Finally, Collaborative Divorce often engages an entire team of professionals to help resolve your case. Experts in the fields of law, finance, mental health, and, when necessary, child advocacy come together to help families through the challenging divorce process. This team approach to divorce allows both parties to retain their own specially-trained lawyer to act as coaches; all other professionals are shared by the divorcing couple, which helps keeps costs down. Each party hires their own collaboratively-trained lawyer, whose goal is to help their clients reach an equitable settlement. Both lawyers and the parties sign an agreement stating that they will settle without going to court; if the parties fail to reach an agreement, the entire collaborative team must resign, and the parties must start the process over from square-one with new litigation lawyers. A variation on this theme is collaborative law, in which you hire collaborative lawyers without a full team to support you through the process. Collaborative divorce can be a very effective approach to divorce, since there are professionals available to handle the legal, financial, emotional, and children’s issues that will inevitably arise during the process. The diverse perspectives provided by the team members facilitate a fair and respectful settlement process. Collaborative divorce could be a good choice if both of you are willing and able to negotiate in good faith, and spend the time and energy necessary to reach a mutually-agreeable settlement. However, it will not work well for couples who are unwilling to compromise, communicate, and commit to reaching a resolution. If one of you is not actually negotiating in good faith, or not interested in reaching agreement, the process will likely fail.
Interesting! What are the other methods someone could use to resolve their divorce?
At either end of the spectrum are litigation and pro se or self-representation. Let’s start with Litigation. Although only about 5% of divorces go to court, you should understand the process if you are not good candidates for any of the Alternative Dispute Resolution models I’ve just described – or if you fail to reach agreement during ADR. In divorce cases that go to trial, both sides have a chance to make their case (either as a pro se litigant or one who is represented by a lawyer); instead of crafting their own agreement, they rely on the knowledge and discretion of a judge to determine their future. Litigation fees can be very expensive, especially in difficult, drawn-out divorce cases. Your lawyers will negotiate on your behalf in an effort to reach an agreement without going to trial; if you can’t reach an agreement, then your case will end up in front of a judge. Complicated divorce trials can take many months or even years, and they’re never pleasant. Generally speaking, you and your spouse each tell your respective side of the story in court. You take the stand, and your divorce lawyer asks you questions that prompt you to explain your side (“Direct Examination”), then your spouse’s divorce lawyer has the option of asking questions or challenging the validity of your testimony (“Cross Examination”). This process is repeated for your spouse. Finally, the judge – who only knows you through what they have heard in court – weighs all the evidence and makes all the final decisions about your divorce. Some couples struggle emotionally or financially with the judgement delivered to them by the court. In most cases, divorcing parties are more likely to honor a divorce settlement that they have contributed towards rather than the orders mandated by a judge – it’s human nature to want to have some control over your future. However, if you’re comfortable entrusting a judge with your divorce outcome, or if there’s a real power imbalance between you and your spouse, or if you’re certain that your spouse is not going negotiate in good faith, then litigation may be your best and only choice.
At the other end of the spectrum from litigation is Pro Se representation. Sometimes called “In Propria Persona” or “Pro Per” (from the Latin meaning “in one’s own person”), or “self-represented” litigation, in this approach to divorce, either one or both parties choose not to hire a lawyer to represent them. The Latin term Pro Se translates as “on one’s own behalf”, meaning that the litigant is acting as his/her own attorney in a lawsuit – including self-representation in court. A pro se party is responsible for properly completing all relevant legal paperwork, remembering important court dates, doing his/her own research and discovery, and assuming any other responsibilities otherwise handled by a divorce lawyer. Many people who opt for self-representation do so for the financial benefit of avoiding lawyer fees and to maintain complete control of their case; however, pro se parties face risks not shared by their represented peers. In addition to the extra stress of representing yourself at court appearances, you may struggle to understand the tax and legal implications of a property settlement, and may also fail to grasp the long-term consequences of the support agreement you’re negotiating. Pensions and retirement accounts are high-value marital assets, some of which have complex rules about how – or even if – they can be divided requiring expert advice and assistance. If your divorce is straightforward, uncontested, you have no children or significant assets, and you are capable of doing thorough research and court preparation without assistance, pro se representation may be an appropriate option for you. However, if your divorce involves child custody or support, spousal support, significant property or pension division, then pro se is probably not the right choice for you.
After deciding which form of dispute resolution you’re going to use, what’s the next step in the divorce process?
You or your spouse will file a petition, application, or complaint for divorce with your local family court. The person who files (called “the plaintiff”) serves a summons upon the other spouse, stating that they want a divorce and what they are seeking in terms of property, child custody, spousal and child support, etc. The other spouse (called “the defendant”) must answer the summons and, if they wish, can make their own claim.
What information should you collect for your lawyer and financial advisor?
You must gather all relevant information for your lawyer and/or financial advisor, including:
- Full names, addresses, phone numbers, and Social Security or Social Insurance numbers for you, your spouse, and your children (if applicable).
- The date of marriage, date of cohabitation, county or region where the wedding occurred, the wife’s maiden name, and any information about prior marriages of either spouse (including the names and prior names of ex-spouses).
- A copy of your premarital agreement (or other domestic contract) and information about any prior legal proceedings, separations, or marital counseling during the marriage.
- All available financial data, including: income-tax returns from the last five years; a recent pay slip; the major assets and liabilities of both you and your spouse; budget worksheets; insurance policies; credit-card statements; wills; and any credit or mortgage applications.
Unless you create a separation agreement, your divorce lawyer will use this as a starting point for the discovery process. Your lawyer needs as much specific information about the marriage as possible in order to work out the financial and children’s issues fairly. Most of discovery involves financial matters, for which your lawyer needs specific, accurate details. From the value of items you bought during the marriage to stocks, pensions, and revenue from a business, you and your divorce professionals (e.g., lawyers, mediators, financial advisors, appraisers, etc.) may have to retrieve documentation of every dollar value – including that of premarital assets.
Is there anything else you might have to do before the divorce is finalized?
Although it may feel like it sometimes, life does not come to a halt while you’re negotiating your divorce. Whether your divorce case takes six months or six years from beginning to end, you have to keep food on the table and a roof over your heads, among other things. During this temporary period before a divorce is finalized, most people are able to reach an agreement about how to pay for their expenses. If they can’t reach agreement, they might have to go to court to ask a judge to issue temporary orders. A temporary order/agreement establishes quick decisions about the children, property, bank accounts, support, and other key issues during the separation period. For example, if one spouse moves out of the home and the other has no income, how will the latter feed the kids and pay the bills? One of the most common temporary orders is for spousal support. To obtain this order, you must establish that one spouse needs the support and that the other spouse is able to pay it – which may require a Financial Affidavit or Statement detailing both spouses’ living expenses and incomes. You’ll set your temporary order/agreement in a brief, relatively informal hearing before a judge, so prepare a complete list of what you want to request. The items you can request include: temporary custody and visitation arrangements; a restraining order (if there has been domestic violence); child or spousal support; and/or who gets the car and house.
If you need to readjust certain arrangements during the divorce process – such as custody, visitation, or support – you can initiate this by filing a motion with the court. A short hearing takes place in which the lawyers representing you and your spouse present their cases before the judge. In most cases, only the lawyers are permitted to speak. However, if you are going the Do-It-Yourself route, you’ll be able to represent yourself in this hearing. Once the judge makes a decision on the matter, the regular process continues as before.
What is the difference between contested and uncontested divorces?
In a contested divorce, a judge will decide the outcome if you can’t come to an agreement on your own. In an uncontested divorce, both of you agree on how to divide your assets and debts, who gets custody and pays child support, and whether one spouse needs to pay spousal support to the other. Obviously, an uncontested divorce will be faster and simpler than a contested one. However, the more issues you’re able to resolve on your own means fewer to resolve in court – which will help to reduce your expenditures of both time and money in a contested divorce.
What are the main issues couples will have to resolve during their divorce?
Money and property. Your property will be classified as either “marital” or “separate”. All marital property will go into the marital pot that will be divided between the two spouses, and separate property stays out of the pot. The rules are complicated, but generally speaking, separate property is anything that was brought into the marriage, inherited during the marriage, or gifted during the marriage – and kept in one spouse’s separate name. The goal of property division is “equitable distribution” – meaning a fair division of assets and debts. The more financially complicated your divorce, the longer this will take. You’ll likely need an accountant, a Certified Divorce Financial Analyst® (CDFA™), and perhaps a business or pension valuator to help you make sense of all the assets.
Spousal support. In family law, marriage is seen as a financial partnership. When that partnership breaks down, the partner with more income or assets may have to pay support to the other. Sometimes also known as “alimony” or “maintenance”, spousal support is based upon one spouse’s need and the other person’s ability to pay. For instance, you may “need” $5,000/month to cover your expenses, but if your ex is making minimum wage (and is not independently wealthy), then you’re unlikely to get that $5,000/month. Spousal support is intended to cover living expenses while the financially-disadvantaged ex-spouse goes back to work or school to retrain for a higher-paying job. In the case of some long-term marriages, support may be ordered so that an ex-spouse can maintain his/her pre-divorce lifestyle indefinitely. Ask your lawyer whether you’re eligible for or likely to have to pay spousal support.
Child support. All parents are obligated to support their children. In a divorce, the non-custodial parent is usually ordered to pay child support to the custodial parent; the custodial parent is expected to use these funds to pay for the child’s expenses. “Custodial parent” means the one that the children live with most or all of the time; the “non-custodial” parent would have visitation or access rights. The amount of child support is based on a number of different factors, including the annual income of each parent, the total number of children in the family, and the custody arrangements for the children.
Child custody and visitation. Child custody has two components: legal and physical. Generally speaking, sole legal custody means that one parent has the legal authority to make all major decisions involving his/her children, while joint or shared legal custody means that both parents have an equal say in all major decisions about their children’s lives. Physical custody can be sole, split, or joint/shared (the terminology varies by jurisdiction, so make sure to become familiar with the correct terms for your area). One of the most important decisions you’ll make during your divorce is where and with whom the children will live. Unless your spouse is abusive, both of you should work together to create an agreement in which you both get a fair share in raising your children.
How soon can a divorce take place after filing the divorce petition?
There is usually a set minimum waiting period between the divorce petition and the final decree. Even if your process is very quick, the waiting period must elapse before the judge officially grants the divorce. Lengths vary between states and provinces, but the average waiting period is about six to twelve months.
What is the final step?
After all the issues have been decided (either by you and your spouse or by a judge), a court clerk reviews all the papers and sends them to the judge. When the judge signs a document that officially ends the marriage (a Divorce Judgment Order or a Divorce Decree), you are legally divorced.
The divorce process is complicated, and this summary doesn’t touch on what an emotional rollercoaster ride a divorce is. Divorce is never easy – and if your ex is uncooperative or downright adversarial, it can turn into a long, painful, and expensive process. It can also damage your children’s psychological growth if you and your spouse don’t consider their well-being and act in a way that will lead to a respectful co-parenting relationship post-divorce. But once it’s finalized, you’re free to start over – so the sooner you reach the end, the better for all involved. Consult the necessary divorce professionals (family lawyers, divorce mediators, CDFA professionals, accountants, therapists, etc.) to find out how to reduce time, money, and emotional costs during your divorce process.
Dan Couvrette: My guest today has been Diana Shepherd, the Editorial Director of Divorce Magazine and www.DivorceMagazine.com. We hope you’ve found this session helpful. We have many more great videos and podcasts to share with you: check out the three on your screen and you can start your next “class” right away!