Posts Tagged ‘Divorce Basics’

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Preparing Your Spouse to Receive Divorce Papers

Wednesday, July 15th, 2009

Although it may be very difficult for you to broach the subject of divorce with your spouse, if you have decided to file for a divorce it is best to let your spouse know in advance that the divorce papers are coming. Even when the marital relationship has gone awry, the spouse served is often shocked and upset when the papers finally arrive. Try and soften that blow to the extent you can. It may set the stage for how much you and your spouse will cooperate throughout the process. For a terrific article on serving divorce papers, see http://www.womansdivorce.com/how-to-serve-divorce-papers.html.

 

If, on the other hand, you feel that you may be in danger if your spouse knows in advance that the papers are coming, then make sure that your lawyer is aware of your fear. You will want to make sure that you are in a safe place when the papers are served. If your spouse becomes violent or threatening after the papers are served, call the police. Don’t take any chances. Call your lawyer after you have had a chance to get to someplace where you will be safe. Your lawyer can do little to remedy the immediate situation; that’s why it’s important to call the police first.

 

How to Serve the Papers

 

How you handle serving papers on your spouse can be instrumental in how the rest of your case progresses. Most sheriffs and process servers can arrange with your spouse to deliver the papers so that it is not unduly embarrassing. Your spouse will be able to meet the sheriff to receive the papers so that service can be as private and non-confrontational as possible.

 

Generally, receiving divorce papers is painful and scary. Expect some hurt feelings and angry words. If your spouse has been violent in the past or has started behaving erratically recently, consider having a phone handy to call 911 in the event that your spouse becomes a problem, or be prepared to file a temporary restraining order. At the very least, establish a “safe haven” in advance where you and your children can spend the night if your spouse becomes violent. These scenarios happen infrequently, yet you want to be prepared if you are at risk. To make sure you are prepared, be sure to visit the Peace Talks resource center at http://www.peace-talks.com/resources.php.

 

 

Excerpted from Your Divorce Advisor: A Lawyer and a Psychologist Guide You Through the Legal and Emotional Landscape of Divorce (Simon & Schuster/Fireside 2001). For more information: http://www.yourdivorceadvisor.com/.

 

For more information contact Peace Talks www.peace-talks.com 

(C) 2008  Peace Talks Mediation Services, Inc.

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Filing for Divorce: Step by Step

Monday, July 13th, 2009

To illustrate the procedure of filing for divorce, let’s outline a typical case step by step:

 

Bill decided he wanted to file for a divorce from his wife, Anne. He contacted and retained an attorney who agreed to represent him. The attorney filled out the necessary forms, which stated that Bill and Anne were married July 20, 1990 in New Haven, Connecticut, that they’d each lived in Connecticut for more than a year, and Anne’s maiden name. It also stated that they have 3 children, Bill Jr., born December 1, 1992, Thomas, born July 5, 1993, and Julie, born September 21, 1995. The forms also stated that no one in the family received welfare assistance during the marriage, and that the marriage had broken down irretrievably (no fault divorce). Bill asked the court to divide their property fairly between the two of them, and for joint legal custody and visitation with the children. He filed a request for temporary orders requesting that visitation be established on an interim basis, since he had already moved out of the house. The attorney arranged to have Anne served with the papers, and when they were returned to the attorney after service, the attorney filed them with the court. This started the case.

 

Cynthia wanted to divorce her husband, Ted. Because she and Ted had no children and little property, she decided she would file the divorce Pro Se, without a lawyer. She purchased a book at the bookstore (oftentimes the courthouse clerk’s office can provide a list of Pro Se books available) titled How To Do Your Own Divorce in Minnesota and followed procedures as stated above. She filled out papers she picked up at the court, arranged with the sheriff service at the courthouse to have the papers served on Ted, and after they were served, she returned them to court with a check for the filing fee. Thus, her case was opened with the court.

 

Does it make a difference who files first?

 

In most cases, it doesn’t make any difference who files first for the divorce. Your rights are not compromised by the fact that you (or your spouse) filed the divorce papers. In the event of a trial, the person who files tells his/her side of the story first, which can be advantageous. Otherwise, it makes no difference who files the papers.

 

If you are the plaintiff and you change your mind about pursuing the divorce, you may stop the process at any time by filing papers to withdraw the case from court. If you are the defendant (your spouse has filed the divorce against you), you cannot withdraw the case without your spouse’s cooperation. In a “no fault” divorce, if the plaintiff represents to the court that the marriage has broken down without hope of reconciliation, the court will grant the divorce even if the other spouse wishes to remain married. For a host of free information about divorce, be sure to see the Peace Talks resource center at http://www.peace-talks.com/resources.php. For a list of terrific books about divorce, see http://www.peace-talks.com/books.php.

 

 

Excerpted from Your Divorce Advisor: A Lawyer and a Psychologist Guide You Through the Legal and Emotional Landscape of Divorce (Simon & Schuster/Fireside 2001). For more information: http://www.yourdivorceadvisor.com/.

 

For more information contact Peace Talks www.peace-talks.com 

(C) 2008  Peace Talks

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Filing for Divorce

Thursday, July 9th, 2009

Once you have everything in order, you can actually file for divorce. To begin, you need to file with the court. Basically, a set of forms need to be filled out, served on your spouse (or you, if your spouse is the one initiating the divorce), and returned to court with a filing fee. The filing fee varies, but is typically under $200 and can be waived by the court if you are unable to pay. You need to fill out a special fee waiver request at the courthouse if you wish to request that the fees be waived.

 

 

Typically, the forms require the date and place of your marriage, the wife’s maiden name, and if there are children, their names and dates of birth, and whether anyone in your immediate family receives welfare assistance. The papers also request information regarding how long you’ve lived in the state, and the grounds upon which you’re seeking a divorce, typically “irretrievable breakdown of the marriage” (no fault).

 

  • The person who files the initial papers is called the Plaintiff.
  • The recipient of the papers is the Defendant.

 

The forms also require you to state in general terms what orders you’d like the court to make. You need to indicate whether or not you’re requesting alimony, a property distribution, custody, joint custody or visitation, and a restoration of the wife’s maiden name (wife’s choice only). You don’t need to state specifically what you’re requesting, just the general categories. For excellent article, plans and checklists, see http://www.peace-talks.com/resources.php.

 

Along with the initial papers, you can file a request to have the court make initial orders concerning custody, visitation, support, alimony and use of certain items which belong to either or both of you. These orders are temporary, and last only as long as the divorce is pending. For excellent divorce information, see http://www.peace-talks.com/divorceinformation.php.

 

 

Excerpted from Your Divorce Advisor: A Lawyer and a Psychologist Guide You Through the Legal and Emotional Landscape of Divorce (Simon & Schuster/Fireside 2001). For more information: http://www.yourdivorceadvisor.com/.

 

For more information contact Peace Talks www.peace-talks.com 

(C) 2008  Peace Talks Mediation Services, Inc.

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Divorce Attorney Fees

Thursday, May 28th, 2009

When you telephone to make an appointment to meet with an attorney, ask if there is a charge for the initial consultation and be prepared to pay at the appointment if there is a charge. In many communities, free initial consultations are a thing of the past for experienced divorce practitioners. One of the reasons for this is that the initial appointment can often last an hour or more, depending on how many questions you ask and much you need to tell the lawyer at first blush. In addition, once you have consulted with the lawyer, the lawyer cannot then represent your spouse because it would present a conflict of interest for the lawyer.

 

Often, less experienced practitioners will not charge an initial consultation fee, or even a retainer fee. In some cases, that’s because have not built up a clientele, and would like to encourage business. In other cases, they are simply less experienced. It’s hard to know whether a less experienced lawyer is going to do an extra good job on your case to develop a good reputation and encourage referrals, or whether the less experienced lawyer simply won’t know enough to handle your case effectively. That’s why it helps to get references from friends, family, other lawyers, and the local Bar Association.

 

Once you have hired a lawyer, ask for a written fee agreement. Most states require that this be done, but even if it’s not required, it helps to have in writing how much money the lawyer needs to get started on your case, how fees will be billed, what kinds of services you’ll be charged for, such as telephone calls or photocopying, at what hourly rate you’ll be charged, and what will be required if the retainer fee runs out. Your lawyer should also send you a monthly itemized bill so that you can keep track of your retainer, and the amount of time your lawyer is spending doing different tasks associated with your case.

 

If you are worried about your finances, see http://www.peace-talks.com/finformation.php. For a cost comparison of mediation and litigation, see http://www.peace-talks.com/compare.php.

 

Excerpted from Your Divorce Advisor: A Lawyer and a Psychologist Guide You Through the Legal and Emotional Landscape of Divorce (Simon & Schuster/Fireside 2001). For more information: http://www.yourdivorceadvisor.com/.

 

For more information contact Peace Talks www.peace-talks.com 

(C) 2008  Peace Talks Mediation Services, Inc.

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What is Mediation?

Tuesday, May 12th, 2009

Mediation is designed to help you and your spouse resolve issues without having to involve a court in your decision making process. It can save money, time, and hurt feelings. If you want to do your divorce without hiring a lawyer, you may especially want to consider mediation. In addition, many lawyers are “mediation friendly”, meaning that they will cooperate with your mediator and keep the court process to a bare minimum while you work through your issues in mediation.

 

Mediation is becoming increasingly popular as a method for resolving disputes concerning custody, asset division, and child support. In addition to saving money, time, and stress, it allows families to fashion their own court orders tailored to their unique circumstances. Because there are not court pressures to resolve the case within a specific amount of time, mediation sessions can be scheduled at your convenience. And, if you need more information about a specific topic, such as taxes or your children’s visitation needs, you can bring an accountant or psychologist into your mediation session. If you are trying to choose between mediation and getting an attorney, see  http://www.peace-talks.com/proscons.php.

 

Research indicates that it is a cheaper, faster, and less adversarial way to approach the end of a marriage or a custody negotiation compared to court intervention. It also tends to result in fewer returns to court for modifications after divorce. Most parties report high satisfaction with the process, and despite myths to the contrary, it is not more advantageous for either women or men. Partners who opt for mediation tend to select joint legal custody more often than spouses who utilize the court system, partly because of how well the partners got along to begin with, partly because of a slight bias among mediators toward joint custody, and partly because mediation helps parents learn to communicate. Mediation can be handled in a variety of forums, with a variety of professionals assisting.

 

Basically, a trained mediator acts as an impartial third party and assists in reaching resolution on relevant issues in the divorce. The mediator serves as a master communicator, referee and problem solver, working to balance both parties’ interests and to assist them in reaching fair decisions. A mediation need not resolve every issue: you can choose to consult a mediator to resolve custody and visitation issues, but not asset division. Or, you could decide to mediate asset division, but not child support and alimony. Mediation at least helps narrow the focus of the problems and lets you resolve what you can prior to court intervention. Even if you are only partially successful in mediation, the process enables you to keep much of the divorce in your own hands. For a comparison of the cost of a mediated or litigated divorce, see  http://www.peace-talks.com/compare.php.

 

 

Excerpted from Your Divorce Advisor: A Lawyer and a Psychologist Guide You Through the Legal and Emotional Landscape of Divorce (Simon & Schuster/Fireside 2001). For more information: http://www.yourdivorceadvisor.com/.

 

For more information contact Peace Talks www.peace-talks.com 

(C) 2008  Peace Talks Mediation Services, Inc.

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What Are My Options for Divorce Representation?

Wednesday, May 6th, 2009

Your decision to divorce will involve choosing the type of representation you feel you need. How you divorce will have a large impact on how the divorce impacts you, your spouse and your family. If you are looking for more information, be sure to see our resource center at http://www.peace-talks.com/divorceinformation.php.

In most states there are several options:

 

Pro Se or In Pro Per divorce: you can handle the divorce yourself, without the help of an attorney, or hire an attorney only to review your settlement but not represent you in court.

 

Mediation:  you can use a mediator or arbitrator to settle the case, and either go pro se or hire an attorney to file the papers, review the settlement, and escort you to court for the final uncontested court judgment.

 

Hiring an attorney: you can hire an attorney to represent you in court, from start to finish

 

You can use any or all 3 of these methods in any combination. These days, many people represent themselves or settle cases in mediation rather than hiring an attorney and proceeding to court. As attorney fees rise and court case loads allow less and less time for each case, many people find that settling the matter between themselves saves time, money, and aggravation.

 

If you are trying to choose between mediation and getting an attorney, see http://www.peace-talks.com/proscons.php.

 

 

Excerpted from Your Divorce Advisor: A Lawyer and a Psychologist Guide You Through the Legal and Emotional Landscape of Divorce (Simon & Schuster/Fireside 2001). For more information: http://www.yourdivorceadvisor.com/.

 

For more information contact Peace Talks www.peace-talks.com 

(C) 2008  Peace Talks Mediation Services, Inc.

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Steering toward Divorce

Monday, April 27th, 2009

On any trip, once you have decided where you are going, you then assemble what you need to take, and decide whether you’ll need a guide to steer you in the right direction. Some gear you already have, but some you do not. For the gear you do not have, choosing what you’ll need requires research into options for the best gear, given your particular situation and requirements. Do you and your spouse speak the same language or will you need an interpreter? Can you manage the economic and psychological terrain yourself, or will you need a guide? The type of guide is important and will depend upon the difficulty of the trip and your familiarity with the territory. If you are researching divorce and not sure where to get started, visit our resource pages at  http://www.peace-talks.com/resources.php.

 

What is Divorce?

 

Divorce is a full and final settlement of your property and money issues. A divorce also resolves custody and access to both parents for children. Typically divorce judgments stand as final decrees, meaning that they cannot later be modified except under special circumstances. Those parts of the decree pertaining to children will always be modifiable as the circumstances change for the children. It is extremely unusual for property decisions to be revisited by the court.

 

The only situations in which the property divisions will not be final are: (1) either or both of you have made a fraudulent misrepresentation about your assets, in which case the judgment may be reopened; (2) the case is appealed and is remanded for a new trial, which only happens if the judge made a serious error; or (3) you and your spouse specifically reserve the authority for the court to reconsider an item in the divorce at a later time. Examples of when the court may retain authority are:  to review a qualified domestic relations order for division of pension assets, or for disputes which may arise in connection with the sale of a home. In order for the court to retain jurisdiction over these matters, the judgment must specifically delineate that these matters may be revisited. If it does not say so, the court will not retain jurisdiction and settled matters are permanent. If you are looking for a good book about divorce, see http://www.peace-talks.com/books.php.

 

At the end of a divorce, your marriage is dissolved, and you are free to remarry.

 

Excerpted from Your Divorce Advisor: A Lawyer and a Psychologist Guide You Through the Legal and Emotional Landscape of Divorce (Simon & Schuster/Fireside 2001). For more information: http://www.yourdivorceadvisor.com/.

 

For more information contact Peace Talks www.peace-talks.com 

(C) 2008  Peace Talks Mediation Services, Inc.

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