Divorce Cases - How It Works
To obtain a divorce, the husband or wife must petition a court for a judgment of divorce. Attorneys usually draw up these documents for the Petitioner (otherwise known as the Plaintiff or person filing for divorce).
The initial petition often demands much more than the Petitioner expects. Do not worry if your spouse claims that he/she needs support and therefore wants you to pay all attorney fees. Attorneys often use the initial petition as a wish list.
The Respondent (also known as the defendant or the person who didn't file the divorce) has a limited time to file an answer. The Respondent's answer is usually brief, admitting or denying each assertion and asking the court to deny the Petitioner's request.
With the Answer, the Respondent often files a Cross-Petition or Counter-Claim to set forth his position on the basic facts and the relief he/she seeks. It is always a good idea to file a Cross-Petition; without it, the Respondent could easily find himself/herself at trial facing an agenda set by the spouse’s inflated wish list. In most states, the Petitioner has a limited time to file a response to the Cross-Petition.
Early in the process, parties may file motions for temporary orders to address any pressing issue that cannot wait until the end of the divorce.
But most parties make serious efforts to arrive at an acceptable temporary arrangement without going to court. Avoiding temporary orders will help keep down attorney fees and possibly create a more favorable impression on the judge.
Discovery is the process of gathering information that will build and strengthen your case at trial. During discovery, you will gather favorable information about yourself for your attorney to present to the court.
But equally important is anticipating your opponent's case. Winning a favorable judgment means you have to be prepared to deal with your spouse’s allegations.
It is common for cases to settle on the day of the trial and in some cases even during the trial. The settlement agreement has important advantages. A reasonable settlement agreement may allow you and your spouse more control over your judgment. Many clients prefer to avoid the anxiety of wagering their lives on a judge's decision.
Additionally, time and money considerations may lead to a settlement. You may wait one to two years for your trial, but meanwhile, both you, and your spouse’s attorney fees will continue to climb. These fees normally increase dramatically as the trial date approaches.
Finally, as tempting as it is, it is almost always a mistake to negotiate directly with your spouse, even when your attorney is in the loop. Any deals that you cut can create unrealistic expectations that will calcify into intractable positions. The litigation fallout from the miscommunication can easily double your attorney fees.
In Wisconsin , before trial, you might attend at least one mandatory settlement conference, also called a pretrial conference. These conferences force the attorneys for both parties to discuss the merits of the case, with the benefit of input from the judge.
Often, it is during pretrial conferences that both sides fully realize the emotional and financial expenses of a trial. Afterward, they may approach negotiations more rationally.
The demeanor of the judge during these hearings is very important. After hearing an overview of the facts, judges may offer their opinion of the facts and offer suggestions on possible settlement.
In some situations a mediation may be required in place of the pretrial conference.
Although fewer than 5% of all divorces go to trial, this figure varies substantially according to certain factors, including salary level, length of marriage, and the spouse’s occupation. The length of your trial will depend on the time the court allocates and the number and complexity of issues to be decided. Your trial may last anywhere from a few hours to a few weeks.
The Petitioner presents evidence first by calling witnesses and presenting exhibits. Once the Petitioner "rests," it is the Respondent's turn to make his or her case. After both sides have rested, the Court may permit the Petitioner to present "rebuttal" testimony by responding to the Respondent's evidence.
Most lawyers do not use opening or closing arguments in divorce trials, but some courts do allow them.
Divorce proceedings can unleash a torrent of emotions ranging from anger to anxiety to depression. But as difficult as this experience is, you cannot simply call in sick, because your (and your children's) interests hinge on your ability to push through and make rational decisions. So you must work to separate grievances that are meaningfully related to your children's welfare from those that are offensive to you personally, however grave.
Remember that you are not walking this path alone. Your attorney will be your key advisor, but many of the pivotal considerations are not within his or her province. Therefore, it is usually helpful to seek advice from others whose knowledge and judgment you respect, including a counselor.
Always talk to your attorney first. Friends and family may help, but they also might pour gasoline on the fire. Knowing when to tune in also means knowing when to tune out.