Darnell couldn’t believe that it had come to this: he and his wife looked to be divorcing. He hadn’t imagined it in a million years, as much as he had loved his wife, and she had loved him. He still couldn’t understand it, never would understand it. It still felt like a bad dream. Yet he also couldn’t see a way out of it, and it appeared his wife couldn’t either. They talked about how they were going to go about it, but neither of them really had a clear idea of what divorce was or what getting one entailed.

End

Just as marriage needs a clear definition, the clearer the better to understand and endure divorce, divorce also needs a definition, the better to endure and understand it. Yes, divorce spells the end of a marriage. That much is true. Divorce, thousands of years old in the Jewish and later Christian tradition that the West embraced, is the legal process through which spouses end a marriage. Divorce is also, to a degree, a social and ceremonial process. The weeks and months that a divorce commonly takes, and the many interactions that the separating spouses will have with one another and with family, friends, and acquaintances over the divorce, serve to adjust family and other relationships. Everyone gradually learns to take on new social roles, adapting to the marriage’s looming absence. And the brief pro-con hearing at the end of an uncontested divorce, or the much longer bench trial resolving contested issues, plays a ceremonial role. The court hearing marks a clear, public, and formal end to the marriage, as the judge announces from the bench that the marriage is over and that the judge is signing the order so declaring.

Relationship

But don’t mistake divorce as necessarily meaning the end of a relationship between the former spouses. In the technical sense, divorce is only the legal termination of a marriage, through a court process designed for an orderly separation of the parties’ marital interests and affairs. Divorce is not necessarily anything more nor else. Oh, sure, divorce may mean the end of any intimacy and, along with that end, any deep commitment to one another to the exclusion of others. Yes, that is what divorce signals to other potential suitors. One doesn’t court a married person. One may court a divorced person. Recently divorced individuals may have no interest in thinking again of dating, courting, and remarriage. Yet the end of one marriage inevitably opens the possibility of another marriage, at least from the law’s perspective and from the perspective of many in society. Remember, the broad goal of divorce is to make two healthy households out of one unhealthy household. And healthy households can involve new relationships. But divorce doesn’t necessarily end all relationships between former spouses.

Beginning

And that’s an important distinction to make, that divorce only spells the end of the marriage through an orderly court process dividing the parties’ marital interests. In a way, divorce, if anything, means the beginning of a new relationship between the former spouses, certainly a relationship of a different kind, but a relationship nonetheless. Some divorcing parties don’t want to see anything more of the other. But children, shared financial interests, and other concerns may keep those former spouses in relatively frequent contact, whether or not cordial. And in other cases, former spouses remain committed to supporting one another as co-parents, co-business owners, or simply friends. Divorce thus isn’t necessarily a relationship’s end. Divorce is the end of the marriage but the beginning of choices the former spouses get to make or must make as to whether and how to continue their relationship. 

Secrecy

When spouses ask about divorce, though, they generally want to know the process or steps to a divorce. They want to know what divorce is like or, if they’ve already decided to go through with a divorce, then what’s coming. I’ve met with lots of spouses confidentially about divorce. A lawyer’s consults are always confidential, but I mean in this instance that the spouse meeting with me made clear that the other spouse didn’t know of the meeting, indeed, didn’t in some cases know the spouse was even thinking of divorce. If that’s you, secretly learning about divorce without your spouse even knowing it, then you are probably either in a desperate situation, or you may have things out of order. Understand, I don’t blame you. Some people need to learn about a thing before really considering it. And some spouses are unfortunately in no position to speak with the other spouse about divorce, for their own safety and security. Announcing that you’re considering leaving could lead to severe retaliation, even serious physical harm or worse.

Safety

If that’s your situation, that you reasonably fear for your life and limb from your spouse learning that you are even thinking of leaving, then consider getting immediate help. I know that’s not as easy as it sounds. But state courts are supposed to be well equipped to help individuals complete court papers for an emergency personal protection order (PPO). See the example PPO petition and order forms among the forms at the end of this guide. A PPO can prevent your spouse from having any contact with you, including staying out of your residence. A civil court judge can issue the order on reasonable cause to believe that your spouse may physically harm you. Threats, stalking, and similar interference with your liberty and safety may be enough for the order. If you’re not up to going to the court alone for a PPO, seek a close friend’s help or the help of a domestic violence counselor or shelter. Remove the threat and risk of violence, for your personal safety and the safety of those around you, and so that you can think clearly about your marriage and the possibility or necessity of divorce.

Sharing

If that’s not your situation, and you face no serious risk of retaliation for revealing that you’re thinking of divorce, then consider sharing your thoughts about divorce with your spouse. Don’t do so when you’re angry. Try to avoid using the mention of divorce as a wound to hurt or retaliate. Instead, pick a time when you are reasonably cool and have your spouse’s full attention. Don’t bring up divorce for the first time when children or others are present. If you feel that you need the support or guidance of a wise and stable individual when first broaching the subject of divorce with your spouse, then try to arrange a session with a counselor, pastor, or other professional skilled at relationships and communication. You are probably the best judge of how your spouse might react and how you might react to your spouse’s reaction. Divorce is not a subject to introduce spontaneously or lightly. Be as sensitive and thoughtful as you can about how and when to share the subject.

Partnership

While, as indicated above, I’ve had spouses meet with me secretly, without the other spouse present, to learn about divorce, I’ve also met with spouses together to discuss divorce. Whether they’ve already agreed that they should divorce, or whether one is convinced while the other recognizes that opposing is hopeless, couples do go together to meet with an attorney to discuss divorce. Divorce can, at times, even be a partnership process, where the separating spouses agree on everything and remain cordial throughout the process. It doesn’t have to be contentious, at least not for everyone. Attorneys face conflicts of interest in such situations. An attorney must generally represent only one party in a divorce. A common practice when a divorcing couple sees an attorney together is for the attorney to have the spouses decide which one the attorney will represent, and then advise the other spouse to seek independent counsel, if not immediately then surely by the time the parties are ready to sign a consent judgment. But even the attorneys don’t have to fight it out. If the divorcing spouses are in agreement, the attorneys can simply ensure that their individual clients understand their rights and interests. 

Steps

So, introducing the subject of divorce, deciding on whether to divorce, and learning about the divorce process, with or without the help of attorneys, are the first steps. Divorces formally begin, then, when one party files a complaint for divorce with the court. The court issues a summons, like the one appearing among the forms at the end of this guide, and either a process server hands the summons and complaint to the other spouse, or the other spouse consents to service of process. The parties’ agreement can simplify the ensuing process, just as minor children in the marriage or disputes over rights or property can complicate it. But in a divorce without children, and assuming the formal steps, the spouse receiving the complaint then answers it to avoid default. A period of a few weeks or months may then have to pass. Although several states permit an immediate divorce, at least under certain circumstances, many states have a waiting period of from 20 days to 120 or even 180 days before the parties may finalize the divorce with a court trial if necessary, or brief hearing if by consent, to receive a signed divorce judgment. Between the initial complaint and the final judgment, the parties may conduct discovery to learn about one another’s assets or activities, to ensure a fair trial and outcome.

Children

That said, divorce proceedings can vary widely. If, for instance, the divorcing spouses have minor children in the marriage, they can in many cases expect an interim order between the complaint and the final judgment. Interim orders may provide for child custody, child support, and parenting time, pending the final hearing, trial, and judgment. See the interim order form among the forms at the back of this guide. A referee or other Friend of the Court official may investigate and recommend the interim order, which the court may adopt, offering a hearing to parents who object. Interim orders can set the pattern for a final judgment. If the parties dispute the interim order, that dispute can accelerate court decisions on child matters into the first few weeks of the divorce proceeding. By the time the statutory waiting period (if any) is over, the parties may well have parented their children under an interim order for several months, an interim order that the judge may look to when deciding any remaining parenting issues in the final judgment of divorce. Waiting periods can be longer with children than without children, up to six months or even one year.

Property

Substantial property, especially business interests, can also complicate and delay a divorce proceeding. Divorcing spouses may dispute what property is marital property and what property they each hold separately outside the marriage. More about that subject in a later chapter. Divorcing spouses may also dispute the value of the marital property and how the court should best divide it between them. Valuing businesses can be especially tricky, when the court must place a value on the business to award it to one spouse while compensating the other spouse accordingly. Large differences in business or other property appraisals may require discovery, hearings, and trial, to resolve disputes openly and fairly. Generally, the longer the marriage’s duration, and the more valuable the marital estate, the harder the parties find it to come up with an equitable property division on their own, and the more likely the court must help them or do it for them. 

Mediation

Mediation and other settlement attempts may speed resolution of issues within a divorce. Courts urge or require mediation of issues involving children, disputes over division of property, and any other issues that the parties are unable to resolve by agreement. Mediation involves retaining a neutral lawyer or other professional trained and skilled in resolving disputes. The mediator will gather the parties and their lawyer representatives in an office for negotiations, often separating the parties into offices between which to shuttle with new information and settlement proposals. If the parties reach an agreement, the mediator gets signatures on a writing documenting the agreement so that the attorneys can convert the agreement into a court order and final judgment. The judge may alternatively meet with the attorneys or urge or require the attorneys to meet to see if the parties can reach agreement on and settle all issues. 

Key Points

• Divorce is the legal process for an orderly end to a marriage.

• Divorce does not necessarily end parenting and other relationships.

• Divorced parties may continue contact over children and business.

• Divorce frees a former spouse to remarry.

• Take care for safety and sensitivity in disclosing divorce thoughts.

• Divorce can be cordial and by agreement in some cases.

• Divorce begins with a court complaint and concludes with a judgment.

• Divorce cases permit the parties to discover assets and activities.

• Divorce cases may involve interim child custody and support orders.

• Dividing substantial property and business interests can be hard.

• Courts may require mediation to resolve difficult issues.

Read Chapter 4.