The Little Things
For the last few months, no matter how well I have planned my schedule or what my goal has been, things have not turned out as I have intended. I have been tired, stressed and irritable. I have had work projects up to my ears. I have not gotten to spend quality, fun, summer time with my kids (summer does not last that long here in Minnesota, you know). My computer crashed, and it took buying a new one and returning it, and then repeating that process again before I found one that was up-to-speed and working properly, thereby delaying my work process by several days, not to mention the work that was lost when the original computer crashed. No, these things are not the end of the world, and yes, such is life. But these little things add up and each day builds on the frustrations of the day before, and this makes my life less pleasurable for the time being. After all, life is made up of lots of little moments and experiences.
The Happiness Factor
Sometimes divorce occurs because of a big misstep by one or both members of a couple: an affair; an addiction; abuse. But many times, it's the little things that accumulate, the lives that grow in different directions or other quiet marriage-killers that creep into a relationship that leads to divorce because life together is no longer an option. I recently talked with a friend who knows a couple that's in the process of getting a divorce after 12 years of marriage and two kids. Apparently, they have been living together, trying to appear happy, "making it work" for family and friends, but not being happy or in love for much of the 12 years. This burden got to be too much for either to carry any longer. They finally came to the conclusion, after seeking counseling, they would both be much happier without the other. To many this may seem like a cop out or being selfish, but I think that if you and/or your spouse are terribly unhappy in the marriage, your feelings will manifest themselves in anger, sadness or even depression. And your kids will pick up on your true feelings. This kind of environment is not a healthy, nor happy place to raise kids in my opinion (some of my friends would argue otherwise, but that is another story). I do not advocate for divorce, but sometimes I think it's the right thing for all involved.
Starting the Process to End Your Marriage
While divorce is never easy, and is usually fraught with emotions, if you approach the issue with knowledge and understanding of the process, it can be easier for both members of the couple. The best case scenario is that at the end of the divorce proceeding, you both feel that the resulting decree is fair. Note that I did not say equal, but fair.
Fairness is really what a divorce is all about. I'm sure there are many who have gone through this process who will not agree with this statement, but notice that I use the word should. Each spouse should receive a fair amount of the marital property and his or her own personal property in the dividing of the household. What is fair is dependent on many factors. These factors vary state by state. For a good overview of each state's divorce laws, go to http://family.findlaw.com/divorce/divorce-help/state-divorce-info.html.
Hiring an Attorney
The first question is whether you have to hire an attorney at all or whether you can "share" one attorney. The answer is yes you should hire an experienced family law attorney, even if you feel that you and your soon to be ex-spouse are on the same page, so to speak. A divorce can easily become messy, irrational and emotional, and if that happens you want to have an attorney who knows what he or she is talking about and has experience dealing with this area of the law and divorce-specific issues. This is also precisely why you each should have your own attorney. If things get ugly, a "shared" attorney would have a conflict of interest in dealing with each of you. And you want your attorney representing only your interests. There is one exception of when joint representation is acceptable:
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the clients agree on the major issues
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the clients are confident they can work out the minor issues
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the clients understand that the lawyer cannot fully represent both under the circumstances
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the clients have agreed to this in writing, and
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the clients just want the lawyer to do the paperwork.
If a disagreement does arise, the lawyer ethically has to transfer at least one client to another lawyer. The lawyer may have to transfer both clients to other lawyers if the lawyer has learned some things about the couple that make it unfair for that lawyer to continue to represent one of them.
It's important to find the right attorney for you. Family law attorneys are experienced handling divorce cases like yours and can tell you at the outset what courses of action would be best for you in proceeding with your divorce, including your options in areas like child custody, division of property/finances, and child support. When you interview lawyers you're considering, ask them how they feel about negotiating a settlement rather than going to court, if that is important to you. A family law attorney can also be more objective about your divorce than you can, especially when the spouses are not very amicable towards each other, and will not make any rash decisions in handling your case. And an experienced family law attorney can easily navigate through the paperwork, court proceedings and dealings with the opposing counsel, which will make the process easier for you, and hopefully speed it up.
Opting for a Mediator
If you are really opposed to hiring an attorney and think that you can work together to dissolve your marriage, then another option is to hire a mediator. Mediators can aid you and your spouse in negotiating a sensible divorce agreement that meets both of your needs. Unlike lawyers, mediators work with both spouses at the same time. They don't represent the individual spouses' interests, the way a lawyer does. Instead, mediators facilitate a negotiation between the spouses that is satisfactory to both sides.
The Divorce Process
I am not a family law attorney. I have sat through numerous heated divorce pretrial conferences and trials and just as many that were calm and easily negotiated. I have written several temporary orders and final decrees and know the steps taken to obtain that final order, but I certainly do not pretend to be an expert in this area of the law. But I did find a clear and succinct article written by Chris Hinson on www.alllaw.com entitled What Happens in a Divorce? that I think is a good representation of the steps in a divorce proceeding. And here it is:
The necessary steps in obtaining a divorce will depend on the particular situation of the parties getting the divorce. A divorce where the parties have been married for a relatively short period of time, have no children, and little property or debts should be less involved than a divorce where the parties have been married for a long period of time, where there are minor children, or where there is significant property or debt to divide. The divorce process should be simpler in cases where both parties want and agree to the divorce. If one party is blind-sided by receiving divorce papers they might respond by doing whatever they can to prolong the process. Finally, the more the parties can agree on between themselves the smoother and quicker their divorce. If the couple is bogged down in fighting and disagreements over anything and everything, the process will be slower.
Filing a petition.
The first step in the divorce process is filing a petition. Even where both spouses agree that they want to get divorced, one of them will have to be the one to file a petition with the court asking for the divorce. The petition will state the grounds for the divorce. The grounds for divorce vary depending on the jurisdiction. All jurisdictions allow for some type of no-fault grounds such as "irreconcilable differences", but only a few states still consider fault grounds for divorce, such as adultery or abandonment. Your lawyer can tell you whether fault grounds are available in your state, and if so, whether or not it makes sense to file for divorce on fault grounds.
Temporary Orders.
If one spouse depends on the other for financial support or will have custody of the children, that spouse needs to ask the court for temporary orders for support and custody. For example, if a stay at home mom files for divorce, she will need financial support from her husband to continue paying the household bills. She will also need a temporary custody order and a temporary child support order for the kids. A temporary order is usually granted within a few days and will remain in effect until a full court hearing. If the party seeking the temporary order is the same party who files the petition, they should file them at the same time. If the party seeking the temporary order did not file the petition, they should file their request for the temporary order as soon as possible.
Service of Process.
The party who files for divorce also needs to file proof of service of process. This is a document that shows that a copy of the divorce petition was given to the other party. Service of process can be either very dignified or very undignified or anywhere in between. If the parties mutually agree on the divorce, it is best for the party who files the complaint to arrange for service of process to the other party's attorney. Having a process server visit one's spouse at his or her place of employment to serve papers falls into the undignified category.
Response.
The party who receives service of process will then need to file a response to the petition. If a divorce was sought on fault grounds and the responding party wants to dispute those grounds, he or she will need to address it in the response. The responding party may choose to dispute the facts that are alleged to be the grounds for divorce or he or she may choose to assert a defense to the grounds. If there is disagreement as to property division, support, custody, or any other issue, this should be set out in the response.
Negotiation.
If the parties don't agree on all the issues, they will need to try to negotiate their differences. The court may schedule settlement conferences that attempt to move the parties toward a final resolution of the issues. If the parties disagree on child custody and visitation, the court may also order mediation, evaluation of the children and parents by a social worker or other court employee and that a lawyer or guardian ad litem be appointed to represent the children. Other issues that may need to be negotiated are the property division and any spousal support.
Trial.
Any issues the parties absolutely cannot resolve between themselves will have to be decided at a trial. However, going to trial will take longer, cost more money, and have less predictable results so it is probably best to avoid going to trial if possible.
Order of Dissolution.
The order of dissolution ends the marriage and spells out how the property and debts are to be divided, custody, support and any other issues. When the parties negotiate their own resolution to all of the issues, they will draft the order of dissolution and submit it to the court. If the order of dissolution complies with legal requirements and both parties entered into it knowingly and willingly, then the judge will approve it. Otherwise the court will issue an Order of Dissolution at the end of the trial.
The Scoop
While these steps make the process seem easy and clear cut, in general it's not an easy process, especially if there are kids involved. In fact, it's usually the matters involving their children where the communications break down and disagreements occur. It's often a painful, upsetting time for everyone involved. After all, it's a life-changing event, whether for better or worse (no pun intended). On Wednesday, I'll give you some tips for making the process more amicable and give you some ways to try to patch things up before it gets to the point of divorce if it's heading that direction, but you aren't quite ready to throw in the towel. Over and out…
Anna