Truth about Divorce
While explaining the truth about divorces, I will attempt to discuss some of the basic concepts that you will encounter while divorcing a spouse.
STEP 1: File Complaint First
There is usually no legal advantage to filing your complaint first, except where the spouse lives outside of your county. It is important to file your complaint first because the one to file first may have the final say about where the case will be heard.
Advantages to a No Fault Divorce, also called Irreconcilable Differences
With you and your spouse's consent, and if you and your spouse have lived apart from another for at least 6 months, the divorce can proceed on the theory of irreconcilable differences. By living apart, one spouse does not have to accuse the other in the filing papers of mental cruelty, abandonment, adultery, or alcohol/drug addiction.
As with most areas of the law, there is an exception. You and your spouse may be living together and considered living apart, if you have not engaged in marital relations (e.g. sexual intercourse) for at least 6 months with another. Then you may be considered to be living separate and apart and proceed with divorce.
If your spouse does not agree to irreconcilable differences, you can try and prove grounds (adultery, etc.) or wait until you have been separated for at least 2 years. In the case of a 2-year separation, you are permitted to divorce on the basis of irreconcilable differences without your spouse's consent.
Fault Divorces
Fault or lack of fault has absolutely nothing to do with how the court divides the property, debt, assets, who receives which children or whether or not there will be alimony, etc. While you must provide the judge with a reason for wanting the divorce, deciding one is at fault or there were irreconcilable differences is not important.
Contested compared to Uncontested Divorces
An uncontested divorce is different from the no fault divorce discussed above. If you and your spouse will not be able to agree with regard to alimony, child custody, visitation and property division, the divorce is considered contested.
Where Settlement Fails
Sometimes differences cannot be settled without resorting to the courts. A lawsuit starts by one side (the plaintiff) filing papers (known as a complaint or a petition) at the circuit clerk's Office. The circuit clerk is responsible for maintaining all the papers that will eventually be presented to the judge.
The plaintiff or someone representing the plaintiff is responsible for serving a copy of those papers on the party against whom the plaintiff is bringing the case (the defendant or respondent). In a few instances, these papers can be served by certified mail, but typically service is accomplished through a private process server or a member of the county sheriff's staff.
After being served
The defendant has a certain amount of time, usually 30 days, but sometimes slightly more or less time to file a written response to the complaint. Both the complaint and the answer to the complaint are general in its content. They are simply intended to provide the court and the parties with the issues.
Discovery
After the complaint and answer are on file, each side is entitled to engage in pre-trial fact-finding, called discovery to determine the strengths and weaknesses of the other side's case and to review any documents that are possessed by third parties.
Trial
After all the discovery and pre-trial motions have been completed, a trial follows. Parties to a divorce are not entitled to a jury, so the trial will have to be before a judge.
Appeals
If a party is not satisfied with the outcome of the case, he or she has an automatic right to appeal within 30 days. After all appeals are exhausted, the decision becomes final.
