People often say that somebody is “going through” a divorce. That’s because getting divorced is a process that unfolds over a period of time. It is often a technical process which involves the family’s finances, taxes, insurance, retirement accounts and other important issues. It also involves, most importantly, the care, custody and support of minor children. This is why you need to hire an experienced divorce attorney like Mark S. Guralnick to help you with your case.
Is Divorce Really Necessary?
The first question to ask before getting a divorce is whether the marriage is truly broken. If a marriage can possibly be saved, there are alternatives to divorce which may work for some couples. Some couples may benefit from a “legal separation;” others may benefit from counseling.
In some states, you may be able to file an action for separate maintenance which will allow you to separate from one another while obtaining a court judgment that addresses your financial affairs and property distribution, without actually getting divorced. In other states, there are various levels of divorce. For example, in New Jersey, couples may qualify for a “divorce from bed and board,” which resolves all of the major matrimonial issues but does not permit the parties to completely dissolve the bonds of matrimony in order to marry somebody else. So, if you’re considering divorce, the very first question is whether a traditional divorce is right for you, and what alternatives to divorce might be available for you in the state where you live.
As a general rule, you cannot obtain a divorce unless you meet your state’s residency requirements and unless you have grounds for divorce. Most states require residents to live within the state borders for at least six months or at least one year before they are eligible to seek a divorce. There are both no-fault grounds and fault grounds for divorce. Essentially, a no-fault divorce is a divorce in which the grounds are based on a circumstance that is nobody’s fault – such as the fact that the parties have been living separate and apart for a prescribed period of time. For example, in Pennsylvania, couples may be entitled to a no-fault divorce after two years of separation; in Washington, D.C., a no-fault divorce can be granted if both parties have lived separate and apart without cohabitation for a period of one year before filing for divorce, or if they have “mutually” and “voluntarily” lived separate and apart for six months before filing.
Grounds for Divorce
Fault grounds for divorce vary widely. For example, you may be entitled to a divorce if your spouse is guilty of adultery. You may also be granted a divorce based on your spouse’s extreme cruelty, sometimes referred to as cruel and inhuman treatment. Other fault grounds include incarceration for a specific period of time, drug or alcohol addiction for a specific period of time, deviant sexual behavior, mental incapacity for a specific period of time and desertion, sometimes called “abandonment” for a period of one or more years. The laws of each state vary, and so it is important to check which grounds for divorce are recognized in your particular state.
As part of every divorce case, the parties will be required to submit specific forms setting forth their income and earnings as well as their expenses and debts. Pay stubs and tax returns will also be exchanged along with other relevant financial information. Long before any judge makes any decisions, the parties will have an opportunity to discuss settlement possibilities. In fact, many courts require participation in mediation and other alternative dispute resolution programs.
If you and your spouse are able to reach an agreement on all of the issues, an attorney can help you to prepare a settlement agreement. The agreement will outline all of the important property, financial, tax, insurance and child-related issues. A settlement agreement enables the parties to reach a mutual resolution without asking the judge to decide the outcome of the case. Ultimately, the judge will grant your divorce and order you to abide by the terms of your own settlement agreement.
If you and your spouse are unable to reach a settlement, then your divorce case will proceed through various steps until it eventually is scheduled for trial. You may, for example, participate in “pre-trial discovery.” This process involves exchanging interrogatories (questions), requests for documents, and other written requests in order to obtain information from the other side. It also entails oral depositions, issuing subpoenas for important records, and conducting inspections of property and financial accounts. As the case proceeds, it may also become necessary to file one or more motions with the court. A “motion” is an application that requests the court to enter a court order. For example, one party could file a motion asking the judge to enter a court order to compel the other party to produce evidence that he is withholding. Or, a motion could be filed to compel the sale of the marital home, for example, if the parties cannot reach a mutual agreement on this issue without judicial intervention. An experienced divorce attorney like Mark S. Guralnick can assist you in conducting pre-trial discovery as well as filing motions in order to protect your rights while your divorce case is pending.
If your divorce case is headed for a trial, it will be important to cultivate the necessary evidence, prepare the witnesses who will testify, and research the critical legal issues that will be addressed before the judge. In many cases, it is necessary to secure the assistance of an expert witness, such as an accounting expert, a real estate appraiser, a child psychologist, or another specialist who can testify about relevant facts that will assist you in your case. For example, if you are entitled to a share of the family business at the time that your divorce goes to trial, a financial expert (usually a certified public accountant or an accredited business valuation expert) may be called on your behalf to testify about the value of the business. This is why it’s important to hire a divorce attorney to help you with your case.
When a divorce has been granted, either as a result of a settlement agreement or a trial, the court will enter a final judgment. The judgment is a legal record of the dissolution of the marriage, and it can be registered and recorded in one state or another. Like other civil judgments, a final judgment of divorce can be appealed to a higher court, or it can become the subject of post-judgment motions to enforce its terms.
The Law Offices of Mark S. Guralnick takes pride in helping people with their divorce cases. If you have any questions or concerns, please feel free to contact our divorce attorney.