The Big Decision: How to Start a Divorce

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difficult choice

The Decision to Get Started

Often a couple has agonized for months or even years over whether to end their marriage. Those conversations are difficult and include lots of wishing and hoping. Perhaps counseling has been useful, helping to discern whether you are just having a rough spot or it’s time to say “this marriage is over.”

What I hear repeatedly is that, once the decision is made, both people want to start the process and then get on with their lives.

Choose Your Legal Divorce Process

The process you choose has both financial and emotional implications. The process of divorce actually initiates a lawsuit. There is a plaintiff and a defendant. Regardless of how you create the agreement that spells out all the details, a judge must sign the divorce papers and judgment that say your marriage is ended. The vast majority of couples never see a judge. The papers are processed through the court system, and couples are notified by telephone or mail when the judge has signed the papers.

There are generally two types of divorces:

  • Contested: As a couple, you strenuously disagree and will rely on the court system to make the decisions.
  • Uncontested: You have worked together to agree upon all the terms. Even though the process may be difficult and challenging, you are working out the agreement details yourselves (or with the help of a mediator) and not asking for a court ruling on various aspects of dissolving the marriage.

So, how do your divorce papers and agreement get to a judge for signature?

Do-It-Yourself Divorce (Uncontested)

You can obtain the required divorce forms from the NYS Courts web site and complete all the details yourselves. If you do file the papers yourself, it is referred to as pro se legal representation, which means you are representing yourself.

The NYS Divorce Forms

There are more than 20 different forms in the packet. Most need to be notarized by a notary public. There is a specific checklist of documents that need to accompany the filing.

Most people say completing these forms is very complicated and daunting as the court reviews each and every document for accuracy and completeness without regard to your pro se status. In other words, there is no leeway because you are not familiar with the forms. Of course, you can represent yourself in any judicial proceeding, but, in my opinion, it is worthwhile to have an attorney help process the papers.

Divorce Mediation (Uncontested)

A previous post describes the mediation process in detail. In my experience and that of my clients, divorce mediation is the process that is affordable, efficient, and gentler than other options.

The focus of the divorce mediation process is to produce a Memorandum of Understanding (MOU) which documents all the agreements the couple makes regarding parenting, finances, debt, and other issues. Other resources can be part of mediation as needed such as tax, child, financial, and legal specialists.

Dr. Robert Emery is Professor of Psychology and Director of the Center for Children, Families, and the Law at the University of Virginia. He concluded in a 2001 study that couples who mediate their agreements have more durable and lasting agreements and a much better co-parenting relationship. All families in the study were followed for 12 years. The couples in the study who went through mediation spent an average of five hours in mediation. Some of Dr. Emery’s findings were:

  • Less than 20% of the couples in mediation appeared before a judge.
  • 28% of nonresident parents who mediated saw their children weekly 12 years later, compared to 9% who litigated and 11% in the national averages.
  • 52% of nonresident parents who mediated talked with their children weekly 12 years later. This compares with 14% of nonresident parents who went to court and 18% in the national averages.

The bottom line was that the decisions reached did not matter (both mediation and litigation couples all decided on the same things), but the process of reaching those decisions did matter.

Estimated Cost of Divorce Mediation

For example, the average hourly rate is $150. Divorce mediation (including the drafting of the MOU) generally takes between 10-12 billable hours.

How to Process the Agreement into the Legal System

After the MOU is written, the couple can take the agreement to separate attorneys for review and filing, or they can go to a neutral or scribe attorney. The latter attorney will not give either party advice but will work with the couple to have them sign all of the forms needed to file the agreement. Then the attorney will file the documents on your behalf.

The agreement can be signed as a legal separation (LS) or a no-fault divorce. It is the same agreement in both cases.

  • A legal separation requires one form with certain “recitals” put on the front and back. It is then signed by both of you in the presence of a notary public and filed in the local County Clerk’s office, usually the next day. It is a binding, enforceable agreement even though it is not seen by a judge until it is converted to a divorce agreement.
     
    Converting the LS to a divorce agreement is not automatic. When you are ready to do that, you both need to return to the attorney and complete the balance of forms (more than 20 in total). That is the “divorce packet” that goes to the judge for his or her approval and signature.
     
  • No-fault divorce. Once the paperwork is filed, the processing usually takes 2-8 weeks. You will be notified via email and sent a signed and stamped copy of your Judgment of Divorce or requested to pick up the certified copy at your attorney’s office.

Divorce Through Collaborative Law: (Uncontested)

Collaborative Law is a process to resolve disputes without going to court. Each party has their own individual attorney, and the four of you meet together to discuss options. Often the husband and wife meet separately with their own attorneys in-between settlement sessions.

The couple and their attorneys commit that they will not use the court system, so settlement is the goal. Collaborative law also relies on allied professionals who can provide specialized financial or parenting perspective. If the process is not successful, the couple will each need to retain new and different attorneys to commence litigation. Neither can continue with the collaborative attorney they previously worked with.

Estimated Cost of Collaborative Law Process

This process generally takes 9-12 months. Attorney fees (estimated at $250-$350 per hour) are paid to each attorney as billed.

Divorce Through Litigation: (Often Contested / May Be Uncontested)

When the husband and wife cannot agree or wish to go to court for other reasons, each hires an attorney. One of them commences the law suit (as the plaintiff) by filing the complaint and serving the defendant with a subpoena. In litigation, attorneys use the court to provide temporary orders and referee challenging questions. Generally this is considered contested.

Estimated Cost of Litigated Divorce

Litigated divorces range in price, and horror stories abound. But the expectation that each party would spend $10-15,000 is not unrealistic.

Divorce Through Court Trial: (Contested)

Of course, this is the worst case scenario. Fortunately, only about 5% of all divorces actually end up in trial with a judge. Very often settlements are “imposed” in pre-trial hearings.

Many people do not realize that trials are pretty sterilized and rarely satisfy the emotional “I’ll have my day in court” need that people envision. Getting to a trial usually takes 9 months to a year of litigation, meetings, and hearings.

In the end, few people are satisfied. It often feels like there is a winner and a loser. It is more likely you both are bruised and wounded, and the likelihood of any sort of positive relationship is almost none. Under these circumstances, it is so hard for children to hear and sometimes witness the behavior of their parents.

Estimated Cost of Divorce Through Trial

In addition to the time spent preparing for trial and trying to avoid trial (litigation above), the actual trial may add $20,000 or more to the total cost of the divorce.

Summary

Divorce is never easy. Carrying out the decision, once made, is much easier when the focus is on the future and on the children (when there are children), rather than on the hurts, slights, and wounds of the past.

Divorce can be the springboard for renewal and hope. It can transform your relationship from husband and wife to Mom and Dad and be a positive learning opportunity for your family. Or it can be a nightmare that escalates and leaves lasting resentment and scars for you and your children alike. It’s up to you and your spouse to choose your path.


Photo Credit: ©iStockPhoto

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