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Chapter 1: The Legal and Emotional Landscape of Divorce: A View from the Summit
Beginning at the End
Divorce is now a commonplace phenomenon in our society. Almost all of us have familiarity with it, either personally or through family or friends. As a result, you begin your own divorce with some knowledge about how to approach it. You have heard horror stories about the legal system, but you have also heard about couples who managed their own divorce without hostility and high costs. Each divorce has threads in common, yet each is unique, reflecting the particulars of two people and their balance of personality, resources, hurts, and desires.
When you're thinking about beginning a divorce, it's also useful to think about your goals for the end of the divorce. Thoughtful planning, anticipation, and goal setting will help you stay on the path to a successful divorce: one which dissolves your marriage, but not your sense of family or financial security.
Looking back after your divorce is finalized, you will feel a combination of the sorrow, anger, hurt, relief, exhilaration, and exhaustion of reaching the top of a long, hard climb. The perspective from the top of any peak is often startling, as you see the view below with a clarity that eluded you during the journey. At the same time, the details become distant and the sights and sounds along the way become memories, each one giving way to the next, until only a hazy watercolor landscape is fixed in your mind. How you feel at the top of the summit depends on the way in which you approached the path. Did you have the right gear? Did you have a positive attitude? Did you work well with your partner? Did you take enough water and emergency supplies? Did you choose a good map? Did the weather cooperate? Some aspects were out of your control, but many were not.
Both the legal and emotional processes of divorce mark your path. How you arrived at the decision to end your marriage matters less than how you plan for that ending and beginning your new life. How you care for yourself during the process can mean the difference between a bad situation that never ends, and a future that permits you to move ahead and grow. You can set either a positive or a negative course that will influence your family through a lifetime. Much of your experience will be colored by how you prepared, and how you responded to hardships and curves in the road.
This chapter outlines for you the path you'll follow through the legal forest, and what you can expect to feel at every turn. At the beginning of a divorce, you need to have a picture of the whole journey, so that you will be confident that at the end you'll know:
- You made the best decisions for your children and yourself
- You made agreements based on sound decisions rather than emotional responses
- Your choices minimized the inevitable hurts and losses for you and your family
- Your actions are leading you in healthy directions toward the next phase of your life, whatever that turns out to be
Overview of the Legal Process of Divorce
In most states, the legal divorce process is clear-cut and simple, which is ironic, given the number of emotional roadblocks that can complicate and slow the process. How long it takes to complete a divorce case depends on your local rules and court systems. Variables such as court scheduling times and judges' vacation schedules can also delay your case.
The basic process begins when one spouse files the divorce by submitting the necessary forms to the court. This can be done with or without an attorney.
This basic process includes:
- completing the forms required, typically a divorce petition or complaint, with general requests for resolution, i.e., "joint custody" or "fair division of assets and debts"
- official notice to the other spouse
- either a response from the other spouse, or proof that the other spouse has received notice
- filing the papers with the court
Once the papers have been filed, a mandatory waiting period begins. Each state has a different waiting period, from six weeks to one year. Some states require actual physical separation; others anticipate that you and your spouse will live together until the waiting period expires. During this waiting period, however, the court has the power to make preliminary orders about certain aspects if they are in dispute:
- payment of household expenses
- custody and visitation
- child support and alimony
- use of certain possessions during the case, usually the house or the car
- whether or not a custody investigation will be necessary
- whether or not there is a possibility for reconciliation
- relief from spousal abuse
During this preliminary phase, the court becomes involved only if these matters are disputed. The court's goal is to stabilize the situation, ensure that necessary bills get paid, and protect children from unnecessary or excessive disruption to their lives.
Court intervention is not necessary if there is agreement on the interim issues. These matters, along with the final settlement of the issues in the case, can be mediated, negotiated, or settled out of court at any time. Often, parties and/or their lawyers are able to settle some or all matters on a temporary basis, with the understanding that these agreements may be renegotiated before the case is finalized. When the interim arrangements are settled, they may be written up and presented to the court for approval, or agreed upon informally. When the court approves this agreement, it becomes a court order, and is enforceable by the court. An informal settlement that is not approved by a judge is not enforceable by the court.
If court intervention is necessary for these temporary provisions, the court holds a hearing, a sort of "mini-trial." The judge will hear limited evidence, either through testimony or documents, about your finances, needs, and issues concerning the children. The judge then makes temporary court orders designed to stabilize your living situation while the case proceeds and the waiting period expires. The result of the hearing becomes a court order and is enforceable by the court.
After the initial filing and interim issues have been resolved, several things must happen before the case can be finalized:
- you and your spouse prepare and exchange financial disclosures
- decisions are made about who will keep each asset and who will pay each debt
- decisions are made about who will continue to live in your home or apartment, or whether other living arrangements are necessary
- determinations as to how much spousal support and child support are appropriate, if any, and whether either spouse or a child has special financial needs that must be consideredar
- if disclosures are not forthcoming, or if financial records are unclear, additional investigations may be necessary
- if custody and visitation are issues, a custody evaluation or investigation must be completed
Once the waiting period has expired, and any necessary disclosures or investigations are completed, your case is ready to come to a final judgment.
There are three ways in which this may happen:
- Uncontested trial: all matters are agreed upon, and a written agreement is presented to the judge for review on the final hearing date
- Limited contested trial: some matters are agreed upon, such as custody and visitation, or certain matters about finances, but other issues remain unresolved, requiring a court trial limited to those issues
- Fully contested trial: all financial matters are in dispute, or custody and visitation are not agreed upon, and a court trial will need to be held on all issues.
While most cases begin with unresolved issues, over 95 percent of these cases are settled prior to a divorce trial. Sometimes resolution takes only a few hours; for other cases, it takes months or years. Only about 5 percent of all divorce cases end up in fully contested trials.
Once the case has been concluded either by a court-approved agreement or by a judge after a trial, the matter goes to final judgment, and you are divorced. The agreement or judge's orders become the court orders that govern your case. In some cases, this conclusion is final, but in others, parts of the court orders may be modified in the future.
Property orders are not modifiable by the court after the final judgment except in extraordinary circumstances, such as the discovery of fraud. Other issues, such as spousal support, child support, or custody and visitation, may be adjusted to account for changes in circumstances upon proper motion to the court.
Orders that are made by the court but not followed by the parties may also be enforced by the court through contempt proceedings.
Emotional Guideposts for Divorce
Your success with the legal process will depend in large part on the decisions you make at each stage along the way. As you enter and complete each phase of the legal process, intense emotions may create obstacles at any turn. You can learn to understand these feelings and get past them to act constructively and rationally.
At the same time, you will also have to meet the challenge of independent living. This is no small task, but it is important if you wish to stop feeling lost, helpless, or angry. The checklist below summarizes the emotional guideposts that will lead you through the legal system. As this book proceeds, you will see how you must walk the legal path and the emotional path at the same time.
- Recognizing anger, hurt, distrust, revenge, fear, and other emotions associated with loss
- Learning to assess and manage household finances and responsibilities
- Developing practical job and career options
- Finding legal advice and expertise that counsels but does not inflame
- Establishing a safe environment for yourself and your children
- Negotiating firmly but fairly to obtain a financial settlement that maximizes family assets
- Handling anxiety without unduly burdening the children, your spouse, or significant others
- Using the legal system as a means of protection and structure, not intimidation or blackmail
- Maintaining a respectful distance from your ex-spouse without creating unnecessary alienation
- Creating legal and financial documents that establish your new independence and preserve family assets over time
- Depending upon your role in the divorcing family, you will face some additional challenges, legal and emotional:
If You Initiated the Separation or Divorce
- Informing your partner of your decision with consideration for its consequences
- Preparing for upcoming events without resorting to sneak attacks
- Negotiating generously but with sufficient attention to your needs in the future
- Checking your impatience to finish the divorce and allowing enough time for clarity, processing, and acceptance without diverting from your goal
- Adopting patience with your partner's grief responses, including his or her rage
If You Are Faced with a Separation or Divorce You Did Not Want
- Recognizing the many sides of anger, shame, and sorrow as you experience them
- Checking for signs of depression, and treating them if needed
- Identifying the use of helplessness as a defense or to punish your spouse
- Refraining from wielding children, financial information, or resources as a weapon
- Knowing when you need more support, and from whom and where to get it
If You Have Children and Are Divorcing
- Developing ways of working together as parents that maintain the distance desired or needed
- Determining children's needs jointly
- Communicating to and about the children with the details needed to assure consistency and stability in their lives
- Providing adequately for your children's financial, emotional, and parental needs even when doing so deprives you of personal satisfaction
- Setting up decision-making and custody agreements that are developmentally appropriate and sufficiently flexible to benefit your children
- Maintaining parental boundaries, authority, availability, and expressions of warmth
- Restraining your desire to minimize your partner's access to the children
- Minimizing the court's role in your family's and children's lives
- Checking for signs of stress in your children and yourself and obtaining timely psychological, medical, or educational assistance
- Establishing new family routines, celebrations, and traditions that are respectful of each of your child's families
If Your Friends and Family Ask How They Can Help When people volunteer to help, you can ask them to:
- Listen more often than sharing advice
- Refrain from "spouse-bashing" and help think of ways to make the situation more tolerable
- Provide practical support by babysitting, house sitting, running errands, or planning a night out with friends
- Keep you company when loneliness sets in
- Serve as a buffer during transitions and family events
- Reinforce the importance over time of extended family and continuity of relationships
With these guideposts to mark the way, you are ready to embark on the path through the legal and emotional process of divorce. Along the way, look for the signs indicating that you are headed in the right direction, and aim to reach the summit with a better understanding of yourself and a sense of control over your destiny.
Copyright © 2001 by Diana Mercer, J.D.