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Divorce Roadmap: The Route Around the Legal System

Let's look at how a divorce case works so you can see what you face and how you can beat the legal system. The legal divorce process is similar in all states, but there are two common sets of terms. In this article, I use the first set.

Spouse who starts the divorce = Petitioner or Plaintiff
Document filed = Petition or Complaint
The other spouse = Respondent or Defendant
Document filed (if any) = Response or Answer
Orders for divorce and terms = Judgment or Decree

All divorces start with a Petition and end with a Judgment. The Petition sets out in very general terms what the facts and issues are and what the Petitioner wants. After being filed with the court, it is served on the other spouse to give notice that the case has started. The Petition is a simple, standard document. Filing and serving it is not complicated.

The other spouse can now file a Response if he or she wants to be involved in the legal process. This has to be done within a stated time, typically 30 days after the Petition is served. The Response is similar to the Petition, a simple document that is easy to do. The effect of the Response is simply to get the other spouse into the case on an equal footing with the Petitioner.

If a Response is filed, the case is "contested." If there is no Response, it is assumed that the Respondent concedes all issues according to the broad terms of the Petition and the case is "uncontested." If the couple has made a written marital settlement agreement before the Petition is filed, there won't be any reason for the second spouse to enter the case.

As you can see, there are only three ways you can go through the legal system from Petition to Judgment:

• You go with an attorney through the legal system to trial where a Judge will impose decisions about property, children and support.
• More commonly, you will go through the legal system until your attorney can negotiate an agreement with your spouse's attorney about property, children and support. Once you have an agreement, all that's left is a lot of paperwork and red tape.
• Do it yourself. This means that you and your spouse work out an agreement outside the legal system with only limited assistance from attorneys. As you will see from my articles on divorce, doing it yourself has so many advantages that it is by far the best way of all.

Contested and uncontested divorces are dramatically different:

• The uncontested divorce is relatively simple: it goes straight through paperwork and red tape to judgment. Some couples will need to work out a written marital settlement agreement beforehand. A routine appearance in court by Petitioner may be required, but many states, such as California, have simplified procedures that typically don't require a hearing--uncontested cases are so routine that they don't want to take up valuable court time with them. That's all there is to it. With a little help, almost anyone can do their own uncontested divorce.
• Contested divorces are another matter entirely. There are lots of steps in a contested case and each step is quite complex. They include pre-trial motions, discovery, negotiations, manadatory custody mediation, pre-trial settlement conference, and finally, the trial. This is lawyer country; you can't go through a contested divorce very effectively without one. It takes lots of time, money and emotional suffering to get through a contested divorce.

Any contested case can become uncontested if one spouse simply drops out of the contest or if the spouses reach an agreement--the earlier, the cheaper. However, when you are represented by attorneys, it is much more difficult to reach agreement. When negotiations are conducted through attorneys, it is typical for a case to drag on and on and run up large attorneys' fees before it settles.

Advantages to a Legal Contest

It might seem odd after all I've said, but there are some advantages to a contested divorce in some cases:

• In high-conflict cases, you can get some restraining orders.
• If your spouse is playing hardball, it may be better to fight rather than give in.
• Fighting is an outlet for or diversion from the pain of divorce.
• Anger and fighting help sever bonds of attachment and affection. In some states, there is a chance for material gain--if you win.
• And, finally, some people just feel like fighting.

If you have to fight, Divorce Solutions: How to Make Any Divorce Better (the book from which this article was excerpted) discusses how to run a controlled battle effectively and how to avoid some of the worst disadvantages.

The disadvantages to a legal contest, however, are truly impressive:

• Both sides get drained financially and emotionally.
• Two lawyers double the personalities in the case and increase the complexity of every communication, making settlement much more difficult.
• Kids can get harmed, perhaps permanently; chances for cooperative co-parenting in the future will be seriously impaired.
• Imposed terms are often not adhered to, so you end up in more hassles, spending more money and time on enforcement.
• Your upset becomes entrenched, runs deeper and lasts longer. Since your real goal is to get on with your life, this holds you back and down--perhaps forever.

Now that you know the route around the legal system for a divorce, you are ready for my article Divorce--How to Beat the System.

Copyright 2005 Ed Sherman

Ed Sherman is a family law attorney, divorce expert, and founder of Nolo Press. He started the self-help law movement in 1971 when he published the first edition of How to Do Your Own Divorce, and founded the paralegal industry in 1973. With more than a million books sold, Ed has saved the public billions of dollars in legal fees while making divorce go more smoothly and easily for millions of readers. You can order his books from http://www.nolodivorce.com or by calling (800) 464-5502.