Frequently Asked Questions About Divorce
Ending a marriage is a difficult decision which brings on a storm of stressful events. In the midst of this, your emotions can make it challenging to understand the legal process, which could lead to poor decisions. For this reason, it is essential to be informed about the proceedings for a divorce and have your doubts and questions cleared. To arm you with the information you need to prepare for a divorce, Divorce and Mediation Law Firm has answered some of the most frequently asked questions about divorce. © James Publishing
1. I want to file for divorce; does it matter who files first?
There are a few advantages to filing first in a divorce action. The party filing first can set the tone of the divorce by starting it out as uncontested or contested. The party is also able to obtain immediate relief in the form of temporary restraining orders, and protective orders should facts warrant this type of relief.
Another advantage is that the party filing first can present their case first to the court at a hearing or trial as they are the petitioner and are entitled to go first in the presentation of evidence. This can get a party’s story out to the court in the front end such that the other party is practicing defense against the petitioner’s case.
2. I want to file for divorce, but my spouse will not agree to the divorce. Does this prevent me from getting a divorce?
No. Just because your spouse does not agree to the divorce does not prevent you from getting a divorce. Only one party has to want to get divorced for the court to consider and grant a divorce. What this means is that you will likely have to file for divorce and then serve your spouse with the divorce petition through formal service of process. This forces your spouse to answer the lawsuit or face a default judgment for not responding.
3. How long will it take me to get divorced?
Every state has waiting periods for divorce actions such that from the time the petition is filed to the spouses, they have to wait a certain period of time until they can go into court and get a divorce. When the waiting period expires, it does not mean that the spouses are divorced. The spouses have to have either agreed to the divorce and have submitted a final decree of divorce to the court for signature or conducted a final trial before the court where rulings were made by the judge on the terms of divorce.
During the waiting period, spouses can negotiate the terms of their divorce if it is, in fact, agreed to. If it is not agreed, the divorce will likely take longer than the waiting period to become finalized, and the parties have to conduct hearings and a final trial to obtain a divorce.
4. I am afraid my spouse will react harshly to the divorce, what should I do to prevent this?
It is recommended that you are not present when the divorce papers are served to your spouse to prevent an altercation between you and your spouse. Coordinating with the process server who will serve the divorce papers is a good idea.
In addition, if you and your spouse are still living together, sleeping in separate rooms is recommended if your spouse refuses to move out. If things turn hostile or violent, your attorney will likely be able to ask the court for a restraining order or protective order ordering your spouse to move out of the marital residence. It is not recommended that you move out of the marital residence unless absolutely necessary as the one remaining in the house will likely obtain temporary exclusive use of it.
5. Can I handle my own divorce by filing and going to court myself?
It is not recommended that you do this as there are legal requirements that must be alleged in the divorce paperwork to entitle you to a divorce. In addition, when drafting a final decree of divorce, it is vital that the divorce terms are done correctly so that the court orders are enforceable later if someone is not following the orders of the court.
In addition, if you file for divorce, and your spouse hires an attorney, this will put you at a serious disadvantage when it comes to going to court and effectively presenting your case. You will need an attorney who knows the procedural and evidentiary requirements of the court to present your case to the judge properly.
6. Will I get to keep my property once the divorce is over?
The property that the spouses accumulate during the marriage is marital property and is subject to division by the court. Depending on what state you are in, the court can divide this in a variety of ways, with a fifty-fifty division usually being the starting point of the division. Certain factors can cause an unequal division of assets such as the spouses’ earning power, age, health, and the spouse obtaining custody of the children.
Certain property may be considered as a spouse’s separate property that is not subject to division by the court. This includes property acquired by a spouse before the marriage, property acquired by gift, and property acquired by inheritance. However, property such as interest of dividends acquired from this type of separate property is subject to division by the court.
7. Who will get custody of the children upon finalization of the divorce case?
This will initially depend on whether your divorce is agreed or contested. Usually, the parties have to agree to who will obtain the right to determine the children’s residence once they are divorced. The party without custody will then obtain visitation rights to the children, which can occur in a variety of ways determined by the parties.
If the case is contested, many factors can affect how the court will determine custody, including a history of involvement with the children, background of the spouses, work history, place of residence, desires, and needs of the children, and the children’s wishes if they are old enough to express them. Custody battles can tax the parties’ time, energy, and resources, so litigation custody should only be done after careful consideration of the risks and advantages.
8. I just moved to this state. Can I get a divorce?
Usually, you have to satisfy residency requirements in your particular state to be entitled to a divorce. This means you have to have resided in your state for a certain period of time and in your county for a specified period. If your spouse has resided in their state for the requisite period of time, they can file for divorce there, and you and your spouse can attempt to reach an agreement on the terms such that you will not be required to show up in their state to prosecute the divorce.
If you have any more questions about getting a divorce, get in touch with the experts at Divorce and Mediation Law Firm. As a top law firm in Pembroke Pines and Sunny Isles Beach, FL, we provide you with reliable, effective, experienced legal experts you can trust. Our legal professionals are committed to justice and achieving the best possible results for you. We pride ourselves in treating each client as an individual, carefully planning for their particular needs, and delivering effective legal services to achieve the best results possible.
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