Anatomy of Divorce: Part II

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Anatomy of a Divorce: Part II

• Serving the papers



• The response



• Mediation



• Arbitration



• Temporary orders



• Final orders



• Divorce decree



• Property division

Serving the papers

Divorce documents are usually delivered formally by one method or another to ensure that the other party received them. They may be served by a process server or by the police. Both will cost a small sum of money (roughly $25-$50 USD for the server, plus lawyer fees to draft the papers). Or, the receiving party may choose to pick them up in order to avoid the embarrassment of being served at work or in public. In some states, it is not possible to serve someone via Facebook.

In some US states, filing divorce papers automatically sets in motion the process of court involvement. In other states, the filing sits there until the person decides to have it served.

If your lawyer faxes or mails the documents, this often counts as service, but if you can't independently prove it, then the opposing party can say he or she did not receive it.

The response

The response (sometimes called the counter claim) often contains complaints or accusations against the party who filed first.  If you don’t file this in time, you can lose the case by default.

Very often, this content will be inflammatory and untrue in high-conflict divorces. You may read the claim or counter claim and feel very emotional reading intimate details that are exaggerated or outright false in a legal document.

If it provides any comfort, the content in the claim and counter claim is largely disregarded by a judge, if he or she bothers to read it at all. While it can be difficult to take a deep breath and move on, try to do so. Or better yet, look at what the other party is accusing you of, and begin to build a case in advance to defend yourself. Document everything and put a plan in place to disprove any allegations that have any bearing on your case. Often, the inflammatory language is just words, but it can also tip you off about what kinds of false allegations your spouse may have in store. Even for low-conflict divorces, emotions are raw. Family law courts know this, and tend to expect more volatile, hurtful language in the claim and counter claim, and expect that behaviors and feelings will settle down with time.

Mediation

Mediation might be a voluntary step of your divorce process, or it might be ordered by the court. It’s a way to try and keep things simple and cheap, which makes it an attractive option. In some states and countries it’s a required step in every divorce, although it may be possible to waive. Most courts want to keep people out of the courtroom so that more serious cases can be heard. Unfortunately, many BPD divorces are the serious, high-conflict cases that tend to show up in court. Bill Eddy writes in his book Splitting that roughly 20 percent of all divorces are high-conflict, but 80 percent of all divorces that end up being tried in court involve someone with a PD. If your spouse is a high-conflict personality (ie. has a target of blame, recruits negative advocates, and is a persuasive blamer), chances are you will not be able to settle everything in mediation. Or, if you are able to settle and agree to terms, the person with BPD will not comply with those terms, and may find loopholes in the language that create ongoing conflict, often leading to repeated trips back to court.

Mediation usually means that a court-appointed mediator tries to get the parties to agree to at least some of the items up for dispute. It may be possible to mediate 90 percent of your case, but require the judge to rule on the last 10 percent. For example, if you do not agree to joint legal custody of the kids, but can agree to everything else, you can say so in the mediated agreement. Then, when you have gathered enough evidence to file for full legal custody, you can do so later (although this can be challenging).

The mediator may have no authority to make you agree to anything, but if you agree and sign a document, and the judge approves it, the agreement becomes a binding legal document.

The mediator’s notes may or may not be available to use in court. It may not be possible to subpoena the mediator, so anything said in mediation would remain secret. Check with a lawyer in your country or state to find out how your court treats mediator’s notes.

It is best to go into mediation with a negotiation strategy. Ask for more than you think is reasonable so that you have room to negotiate. And definitely have a bottom line. Lawyers and mediators are often motivated to settle out of court, so they put subtle pressure on you to accept a deal that is might not be in your best interests. Often, members here recognize that they can get a better deal from a judge than what their spouse is willing to offer. If you realize an hour into mediation that your spouse is not willing to compromise, end the mediation and prepare for court.

In a divorce, almost everything is negotiable, and in the US more than 90% of divorces are settled by negotiation, meaning there is no need for a trial.  That can save a lot of money and stress.  When you are divorcing someone with BPD, it may be hard to negotiate at first, but as the trial approaches they often become willing to negotiate.

Arbitration

Arbitration usually means a court-appointed arbitrator can make a binding decision after talking with both parties. The parties may agree to this process or it may be ordered by the court.

Pre-trial conference

The judge may require a conference and attempt to settle without a trial. She may indicate how she is likely to rule on the issues, so the parties can decide if they want to accept in advance or go to trial. Alternately, some issues may be settled in conference, and parties agree to have the judge rule on the remaining items in court.

The pre-trial conference may involve a “magistrate,” and not the judge. A magistrate typically deals with more minor issues and has less judicial and administrative powers than a judge.

Sometimes the conference will involve only the lawyers and the judge (or magistrate).

Temporary orders

If there are kids involved, it is a good idea to get a temporary custody order in place as soon as possible. Typically, temporary orders involve financial and custody orders, and may include spousal support and child support. Either party can file a motion for temporary orders, and there may be mediation or a hearing where the judge decides.

It is very easy for a judge to rubber-stamp a temporary order into a permanent one on the theory that what has worked in the temporary order will keep on working.  Therefore, it is crucial for you and for the children to get the best temporary order possible from the very start. For example, if your spouse suggests the kids see you every other weekend, and you intend to ask for 50/50 custody, be aware that judges will consider your consent to the temporary order as a sign that this is good for the kids. In other words, “temporary” is a misnomer.

Final order

The final order often includes the parenting plan, and may include financial issues. In some US states, once the court has signed an order, parents can’t ask the order to be changed for one or two years, unless you can show that there have been “substantive” changes.

Divorce decree

Depending on where you live, there may be an obligatory separation period that occurs after you file for divorce, sometimes this period can last as long as a year. However, in some states, divorces may be granted in six weeks. Often, everything will be settled before you actually get the divorce decree that makes your marriage legally over. For some high-conflict divorces, the legal decree is primarily a footnote that is superseded by the more pressing issues of figuring out custody or settling property and other financial issues. And in some cases, the BPD partner fails to comply with the orders that were mediated or decided before a judge, and the case continues on long after divorce is officially granted.

Property division

In most US states the law calls for an “equitable” division of property.  That doesn’t always mean “equal” because a number of factors, such as the income of the parties, can influence the judge to split the property differently.

Usually the couple’s “net assets” are calculated by subtracting debts, like credit card bills, from assets, or the equity in the house.  Assets and debts accumulated during the marriage are included, but assets and debts brought into the marriage by the parties are usually not included, although this depends on the laws where you live.

Read more:

Anatomy of Divorce: Part I

• What can I expect?



• Preparing for divorce



• Start documenting



• Filing for divorce



• Hiring a lawyer

Anatomy of Divorce: Part III

• Discovery



• Depositions



• Hearings and trials



• Motions for contempt



• Ex parte motions

Anatomy of Divorce: Part IV

• Custody evaluation



• Psychological evaluation



• Visitation



• Rights of first refusal



• Expert or third-party witnesses



• Guardian ad litem



• Parenting coordinator



• Child advocate



• Co-parent counseling