What happens AFTER I file for divorce?
Even though we’ve all heard tons of horror stories about divorce, I find that a lot of people don’t really have any actual idea about what’s involved in a divorce. All too often these days, most of what we “know” (or think we know) comes from TV rather than from actual experience. If you’re facing a divorce, though, I think it’s a good idea to have a firm grasp on what actually happens—rather than worrying yourself to death about things that aren’t really worth bothering about.
Divorces can move forward in all sorts of ways, depending on the unique facts in each case. The thing that matters the most, though, when it comes to how your case will actually move forward is whether you’re moving forward with a contested or an uncontested divorce. A contested divorce is one where you and your husband aren’t able to reach an agreement regarding how the assets and liabilities of the marriage will be divided, and ultimately have to let the judge decide. In an uncontested divorce, on the other hand, you and your husband ARE able to reach an agreement about how everything will be divided.
What happens AFTER I file for divorce?
Even this question, which seems pretty basic on its face, depends on whether you’re headed down a contested or uncontested path. In a contested divorce, if you have fault based grounds, you’ll likely file more quickly (as in, right away) then if you are using no fault grounds and are proceeding on an uncontested basis.
The grounds have everything to do with how quickly you can file. With fault based grounds (and fault based divorces are always contested), you can file quickly and get into court. With no fault grounds, you’ll have to wait to file until your separation period is up.
A contested divorce can use either fault or no fault grounds, but, ultimately, the unifying characteristic is that you and your husband can’t agree about how everything should be divided, so you’ll ultimately let the judge decide.
In a contested divorce, you’ll have to move your case forward yourself, which means making decisions about what is necessary in your case.
Pendente Lite Hearing
In many cases, after you file for divorce, you schedule a pendente lite hearing to have issues like temporary child and spousal support, exclusive possession of the home, and restraining orders (like no wasting of assets and no harassment) handled. Pendente lite is Latin for “while the litigation is pending” and it’s often the first appearance in a contested divorce case. At the pendente lite hearing, the judge doesn’t want to hear about fault or who did what to whom; this step is merely designed to help make sure that the parties have what they need to get through the divorce process. It’s predominantly financially motivated, and it can be a good option for anyone who needs additional financial support while the divorce is pending. That’s an optional first step, and one many people choose to have.
After you file for divorce, you’ll probably also conduct discovery. This is the process we use to determine what assets and liabilities are available to be divided in your case. In an uncontested case, since we haven’t filed, we can’t use the court’s resources to force the other party to participate in the discovery process, so it’s a major advantage to the contested divorce route. It’s pretty time consuming and expensive, but it’s an awesome way to figure out what is there to be divided—and to make sure that no stone is left un turned, so to speak.
After discovery, there are often other required steps—sometimes proffers or judicial settlement conferences, depending on your jurisdiction—but what’s necessary will be determined by your attorney. You may go to court on various motions, but, then again, you might not. Your attorney will tailor her case strategy to suit your specific needs and to address your ongoing concerns. The final disposition, though, will take place in your divorce trial. At trial, witnesses will be questioned, exhibits will be presented, and evidence will be offered, all to prove why you deserve a specific allocation of the marital assets.
When it’s time to file for the uncontested divorce, you’ll either be the moving party (which means that you’ll be responsible for moving the case forward) or the reviewing party.
The Moving Party
If you’re the moving party, it’s going to be your attorney’s responsibility to draft the documents you’ll need to finalize your uncontested divorce. Your attorney will draft pretty much everything: a complaint, a final decree of divorce, a name change order (if you want your name changed), QDROs or ADROS, and so on—and it’ll be your attorney who files everything with the court and moves things forward until the final decree of divorce is officially entered.
These days, most courts in Virginia give the option of an uncontested divorce hearing or, if you’d prefer (and most people do), a divorce by affidavit.
The Uncontested Divorce Hearing
An uncontested divorce hearing is easy as can be. At an uncontested divorce hearing, you, your corroborating witness, and your attorney will go to court and have a quick hearing. The judge or your attorney will ask you and your corroborating witness questions to establish that jurisdictional and legal grounds exist for the judge to grant a divorce, and then your divorce will be granted.
Who can be a corroborating witness? Well, you’ll want someone with personal knowledge regarding how long you and your husband were separated. Usually, we see a friend or family member appear as a corroborating witness, but there aren’t really rules about who that person should be. As a general rule, though, it’s probably NOT a good idea to bring in a new boyfriend or love interest. Though your corroborating witness doesn’t necessarily need to be a woman, most women do choose to bring moms, sisters, or friends along to testify.
Divorce by Affidavit
Many people these days choose to get divorced by affidavit instead. This mostly stems from convenience (but also has a lot to do with the fact that many people want to do anything they can to stay out of the courtroom), since there’s no requirement that you’ll make an appearance in front of a judge at all. Instead of answering the judge’s questions and testifying in front of the court, you and your corroborating witness will testify on paper in affidavit form. You and your corroborating witness will answer the same questions, under oath, on paper that you would answer in person in an uncontested divorce hearing.
A divorce by affidavit can also often save money, since there’s no need for the attorney to appear in court. Instead, the attorney (or his or her paralegal) just prepares the affidavits. The downside? Your divorce will likely take longer. Since you’re just filing paperwork, everything you submit basically goes into a pile that is reviewed as the judge gets to it. Depending on the time of year and the volume of cases the court has at any given time, the amount of time it can take to finalize your divorce this way can be pretty different from one case to another.
The reviewing party
If your husband is the moving party, that will save you a fair bit of money. Why? You won’t have to pay your attorney to draft most of the documents needed to finalize your divorce. That doesn’t mean, though, that you don’t want to have an attorney review the documents your husband’s attorney has prepared. (After all, you probably don’t completely trust him, right?) You don’t necessarily have to have your documents reviewed; you could simply accept service on the complaint and sign a waiver, and the case can move forward without further notice to you. Still, many people choose to hire an attorney to make sure everything moves forward properly.
And that’s pretty much it! Of course, your case is finished when the final divorce decree is entered. Even if you’re not there, the court will let you know when it happens. In most cases, the divorce tends to be granted a little more quickly in a case where you have an uncontested divorce hearing than when you get a divorce by affidavit but, either way, it’s not a terribly long process. (Though exactly how long depends on the court and its docket.)
Depending on the type of divorce you pursue, your divorce can look really different! If you’re still interested in learning more about the divorce process, it’s a good idea to attend one of our monthly divorce seminars. Each seminar is taught by a licensed and experienced Virginia divorce attorney, and you’ll have an opportunity for Q&A. For more information, give our office a call at (757) 425-5200; to register online, click here.