Demystifying Litigated Divorce: Your Step-by-Step Guide

Marriage encompasses both emotional bonds and legal responsibilities. When it comes to untangling those ties through divorce, understanding the journey ahead can help alleviate fears and anxiety. Divorce is a multifaceted legal procedure. It involves ending your marriage under the eyes of the law. There are multiple paths that you can choose for the divorce process. For example, Connecticut has four different paths you can choose from. (See: Four Types of Divorce in Connecticut: Which is Right for Your Family?) Most states offer the same or similar paths as divorce options.

However, when most people think about getting divorced, they think about the divorce litigation process. For those that have never been involved in litigation or the court system, the idea can be quite daunting and anxiety inducing. This step by step guide will help demystify the litigated divorce process by giving insight into what you can expect.

1. Separation

Dissolving a marriage doesn't happen overnight. Many states mandate a waiting period between separation and/or filing for divorce and the final decree. The waiting period can range from weeks to as long as a year. However, some states allow you to waive or shorten the waiting period under certain circumstances.

During this time, couples might opt for either informal or formal separation, each with its implications.

2. Grounds for Divorce

When commencing a divorce, you need to decide whether to pursue the divorce as a fault or no-fault divorce.

All states allow no-fault divorce. This means neither party is alleging any specific wrongdoing as justification for the divorce. (The often cited "irreconcilable differences" that you hear as the reason for all celebrities getting divorced.) A no-fault divorce can be granted even if your spouse does not want the divorce.

Some states also allow for fault divorces. This means there are specific grounds for divorce such as abuse, abandonment or adultery. Fault divorces can be more complicated and expensive. There may be strategic reasons to choose fault-based divorce such as getting around the separation waiting period or some states allow fault to be a consideration in making determinations of property distribution or alimony.

3. Filing for Divorce/Servicing Divorce Papers

The next step involves getting the divorce on file with the court. Generally, you file the initial pleadings (such as a summons and complaint) with the court and then have them served on your spouse. However, in Connecticut, you serve the paperwork first and then file it with the court.

4. Appearing and Answering the Complaint

After your spouse has been served, they have a set period of time to respond and "appear" in the case. Appear means that either your spouse or their attorney files a notice with the court providing their contact information and essentially putting the court on notice that they intend to participate in the divorce proceedings. Generally, your spouse will also have to file an answer to the complaint.

5. Default Divorce

If your spouse fails to respond to the initiating pleadings and does not appear, you can petition the court and request a divorce on default. The court typically will move forward dissolving your divorce and awarding you whatever you request regarding distribution of assets and liabilities, alimony, child support, and child custody.

However, if you and your spouse have children together, the court will ensure that whatever orders are made regarding the children are in their best interests. Child custody and child support are always modifiable. Therefore, if your spouse decided not to appear throughout the divorce proceedings, they can always come back to court in the future and ask for changes to any custody or child support orders, even after the divorce judgment has been entered.

6. Interim Court Appearance and Temporary Hearings

There will often be several court appearances throughout the process. Some appearances will just be status conferences where the court wants to hear the status of what is going on and informally assist with discovery matters, temporary support decisions, and settlement discussions.

There are also often pendente lite (Latin for pending the litigation) hearings that occur throughout the litigated divorce process. Hearings are essentially "mini trials" where evidence is presented and witnesses are heard to address immediate matters such as temporary custody arrangements, temporary financial support, and restraining orders, if necessary.

7. Discovery and Exchange of Information

This phase involves evidence gathering and preparation for the trial. You and your spouse will exchange financial statements as well as financial documents such as bank statements, credit card statements, tax records, and income documentation.

Depending upon your case, other discovery may be needed including third-party discovery from other parties such as financial institutions, employers, or friends and family members. This information may be acquired via subpoenas.

Depositions may also be conducted of you, your spouse, or these third parties. Depositions are a chance for your attorney or your spouse's attorney to ask questions of the deponent that are answered under oath.

8. Settlement or Trial

In a litigated case, the divorce ends one of two ways: either through a negotiated settlement or going to trial and letting a judge decide. In some cases, parties can agree on and enter into a settlement agreement regarding some but not all of the matter at issue in the divorce and will then have a limited trial on just the issues they can not agree upon. For example, the parties may agree on custody terms and a parenting schedule, but have a trial on all financial matters. Perhaps they agree on all issues except what happens to the marital home. Generally, courts have no objection to hearing limited scope trials.

If the matter ends via settlement, the parties will have a settlement agreement setting forth all of the terms of the divorce agreed on by the parties that each will review and sign and then keep a copy for their records.

If a case goes to trial, each side will have the opportunity to present their case by calling witnesses and presenting evidence. A judge (with the exception of Georgia and Texas that allow jury trials for divorce) will hear the case and issue a decision with orders related to all of the terms at issue in the divorce.

9. Entering Judgment and the Divorce Decree

Regardless of whether or not your divorce ends via settlement or trial, either the agreement or the judge's decision will need to be entered as a final judgment and the court will issue a divorce decree. The final judgment is a court order and failure to abide by the terms of the judgment (even if it is from an agreement) can lead to you being found in contempt of court.

10. Navigating with Professional Help

While understanding the litigated divorce process step by step is essential, enlisting professional assistance is invaluable. An experienced divorce attorney not only guides you through the legal intricacies but also ensures your rights are protected throughout this journey.

Your lawyer helps you understand divorce requirements, files the right paperwork in a timely manner, negotiates a fair settlement and maximizes the chances you end up with a divorce judgment you’re happy with.

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This newsletter is for information purposes and should not be considered legal advice and does not create an attorney-client relationship.

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