Full Description

A divorce does not have to be a sticky situation. If you and are spouse are in agreement, there are many ways in which, by working together, you can shave months off of getting the divorce finalized. Quickie Divorce shows you what you can accomplish by working together and how everyone benefits.

But there are times when things are a little messier and all you want to do is get out now. Depending on your situation and where you live, with a little ingenuity, you can speed up the process, and Quickie Divorce can show you how.

Table of Contents

Introduction:
- Is A Quick Divorce Right For You?
- Is A Quick Divorce Possible?
- Speeding Up Your Divorce

Chapter 1: Alternatives to Divorce
- Counseling
- Legal separation
- Annulment

Chapter 2: Hiring a Lawyer
- Pros and Cons
- Finding a Lawyer
- Consultation
- Confidentiality
- The Attorney-Client Relationship
- Hiring Part-Time Legal Help

Chapter 3: Finding the Relevant Law
- Primary Sources
- Secondary sources
- Forms
- Changes in the Law

Chapter 4: The Divorce Case
- Preparation for the Case
- Dissecting the Pleadings

Chapter 5: Establishing Grounds for Divorce
- No-Fault Divorce
- Traditional Grounds
- Covenant Marriage

Chapter 6: Residency Requirements
- Establishing and Proving Residency
- Changing Residency

Chapter 7: Foreign Divorce
- Divorce from Another State
- Divorce from a Foreign Country
- Custody, Alimony, and Division of Property

Chapter 8: Uncontested Divorces
- Default Judgment
- Mediation
- Collaborative Divorce
- When Collaboration Is Not an Option

Chapter 9: Property Settlement
- Division of Property
- Allocation of Debts
- Tax Issues in Property Division

Chapter 10: Spousal Support -
- Temporary Maintenance
- Rehabilitative
- Permanent
- Tax Issues Connected to Maintenance

Chapter 11: Considerations for Couples with Children
- Child Support
- Custody and Visitation
- Savings in Support and Custody Matters

Chapter 12: Emergency Circumstances
- Domestic Abuse
- Harassment
- Parental Kidnapping
- Abuse of Contact or Visitation
- False Claims of Abuse
- Conversion or Depletion of Marital Assets
- Emergency Motion for Custody

Chapter 13: Enforcement of Court Orders
- Child Support Enforcement
- Spousal Support Orders
- Visitation Interference
- Locating an Obligor Parent

Chapter 14: Modification or Termination of Court Orders
- Maintenance
- Child Support
- Child Custody

Afterword

Glossary

Appendix A: Resources

Appendix B: State-by-State Laws

Appendix C: Sample, Filled-in Forms

Appendix D: Blank Forms

Index

About the Author

Excerpt

What You Need to Know about Getting a Divorce

Excerpted from Quickie Divorce by Linda Connell ©2007

Let’s start off right by saying that a true quickie divorce is the exception rather than the rule. Given that, we will take you briefly through the steps involved with obtaining a divorce, and wherever possible, will suggest ways to shorten the time involved in completing each step. If a topic requires more in-depth discussion, it will be taken up in a later chapter.

Preparation for the Case
The steps you must consider as a party to a divorce case may be different depending on whether you are the petitioner or the respondent. The petitioner is the person who initially files the lawsuit asking for a divorce; the respondent is the other spouse who must answer the lawsuit.

In some cases, the petitioner can be at an advantage because he or she can prepare and file the action without the other person even knowing about it until he or she receives formal notice that the action has been filed. In such a case, the respondent may have to scramble to put together information that will be necessary to file a response to the lawsuit. It is important, however, to be as thorough as possible in collecting information, so that the attorney has a clear picture of what is at stake.

Whether you are the petitioner or the respondent, you will need to put together relevant information in order to prepare your case. If you do not have a certain document, try to recreate the information to the best of your ability. For example, if you cannot locate your tax returns for the last several years, you may be able to obtain copies of your recent W-2 forms from your employer, which you then may use to reconstruct the returns.

What follows is a checklist of the information that you should be prepared to bring to your attorney in order to prepare pleadings in support of your case. Some of the items in the list may not be pertinent to your case; however, it is better to have too much information for your lawyer than too little.

Information Checklist
For each spouse, try to gather as much of the following information as you can:

• personal information, including:
• full name
• birth date
• birth certificate
• marriage certificate
• Social Security number
• copy of driver’s license
• highest education level attained
• occupation
• name and address of employer
• date and place of marriage
• names and birth dates of children
• length of residence in state
• information about prior marriages and children
• date of separation
• grounds for divorce
• paycheck stubs for the past 6–12 months, for both spouses, if possible
• tax returns, including W-2s, 1099s, and all attachments for the last three years
• statements for all checking, savings, or other financial institution accounts for the last six months, including account numbers
• all life insurance policies owned by either spouse, including the insurance company, policy number, policyholder, annual premium, and amount of the benefit
• statement and/or plan description of any of the following in which either spouse has an interest:
• profit-sharing
• pension
• Keogh
• credit union accounts
• certificates of deposit
• brokerage accounts
• annuities
• retirement plans
• individual retirement accounts (IRAs)
• deferred compensation
• stock options
• health or dental insurance policies or other health plan to which either spouse belongs
• any other insurance policy held by either spouse, including but not limited to disability or homeowner’s insurance
• documentation relating to any safe deposit boxes held by either spouse
• stocks or bonds owned by either spouse, including purchase date and purchase price
• net worth or other financial statements created in the past 3–5 years for the purpose of obtaining a loan
• prenuptial or postnuptial agreement
• if applicable, information regarding prior marriage(s), including length of the marriage, children born of the marriage, and termination of the marriage
• wills or trusts prepared for or on behalf of either spouse
• wills or trusts in which either spouse is a beneficiary
• any inheritance or future interest in which either spouse has an interest
• birth certificate and Social Security cards for each child
• school records for each child
• college costs for children, including:
• tuition
• room and board
• books
• fees
• transportation
• any assets belonging to children
• work-related child care expenses for all children
• religious upbringing for children—past and future
• any written agreement relating to spousal or child support, custody, or marital property
• deed, address, tax number, and legal description of any real property owned by either spouse
• mortgage documents, tax assessments, or tax bills for real property owned by either spouse
• any real estate appraisal for real property for the last 3–5 years
• for any business interests owned by either spouse, if applicable, partnership agreements or corporation articles of incorporation, along with partnership or corporate tax returns for the last 3–5 years, along with all attachments and schedules
• for any business interests owned by either spouse, any accounts receivable ledgers or profit and loss statements for the past 3–5 years
• inventory of personal property belonging to either spouse separately or both spouses jointly, including approximate value and who owns each
• inventory of debts belonging to either spouse separately or both spouses jointly, including date debt was incurred, amount of current debt, and name and address of creditor for each debt

All of this information can help you and your attorney plan the strategy for your case. It also will make it easier to prepare the necessary pleadings and affidavits to proceed with the action.

Petition and Initial Documents
The first pleading you will need to draft is the Petition for Dissolution of Marriage. This is the document that, when filed with the clerk of the court in your county, starts the divorce case. It formally asks the court to end your marriage. In the petition, you will have to plead all of the facts required by your state’s law in order to entitle you to the outcome you are seeking. At the very least in most states, you will have to set out when and where you were married, how long you have resided in the state, information about your children, and the facts that provide you with grounds for asking for a divorce. Residency requirements and grounds for divorce are discussed later.

Many states require various other documents to be filed at the same time as the petition. Typically, if there are children involved, courts require an affidavit to be filed that meets the requirements of the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). The UCCJEA is a law in most states that makes it easier for one state to enforce a child custody order when one of the parents takes a child out of state when he or she is not supposed to. In a few states where the UCCJEA has not yet been enacted, its predecessor, the Uniform Child Custody Jurisdiction Act governs, although the affidavit requirement is similar for both acts. Through the affidavit, the petitioner swears under oath that the state where the case is filed is the proper jurisdiction.

Another document that courts routinely require to be filed with the petition is a financial affidavit. This is a sworn and notarized document that lists the parties’ assets and liabilities, and helps the court make decisions about marital property and spousal support.

When one spouse files an action in court for dissolution of marriage, the other spouse must receive notice of the proceeding and an opportunity to be heard in the matter. Therefore, in addition to the petition, it is necessary to prepare a document called a summons, which is a notice of the pending action.

Filing
When your documents have all been prepared, the next step is filing them with the proper court. You already should have determined which court has jurisdiction before you drafted your pleadings. Jurisdiction refers to which court is allowed to hear a particular case. Each state has its own requirements for the exercise of jurisdiction over family law matters. In general, at least one of the parties must have lived within the state for a certain amount of time right before the filing of the petition in order for the state’s courts to have jurisdiction over the case. This is called a residency requirement.

In addition to jurisdiction, you should also think about venue, which is the location of the proper court in which to file a petition. In a state court action like a divorce, venue usually is appropriate in the trial court of the county in which one of the parties lives. In some states, it is the county in which the petitioner lives; in others, the petition must be filed in the county in which the respondent lives. In some states, either county is appropriate. Appendix B provides state-by-state information about where venue is proper.

To file a petition, response, or other pleading, bring the original document to the courthouse. It is a good idea to bring an extra copy as well, for your own records. Filed documents usually are given a date stamp by the clerk. Ask him or her to file stamp your copy as well.

Usually there is a filing fee for certain documents filed with the court clerk. The fee is different in each county. Often the fee will include a charge for having the county sheriff serve copies of the summons and petition upon the other spouse (see below). In some cases, an indigent petitioner can ask the court to waive filing fees, if he or she can show in an affidavit why he or she cannot afford them.

Service
For a court to have jurisdiction over a respondent in a divorce (or any other) action, the respondent must have received proper notice of the case. To give notice, the petitioner must serve the respondent with a copy of the lawsuit, in a manner set forth by state law.

Usually, you cannot serve notice to someone else yourself. Instead, service of the summons and petition, also called service of process, must be made either by the sheriff of the county in which the respondent resides or by a special private process server who is registered in the state. The summons and petition must be given either directly to the respondent or to someone who lives in the respondent’s household who is above a certain age, typically 13.

Some states also allow service by publication in a newspaper. Usually this is allowed only after physical service of process has been unsuccessful. When that happens, the petitioner files an affidavit stating that he or she made a good faith effort to locate the other party, has been unable to do so, and does not know where the other party is. In general, states that allow service by publication also only allow the court to order the dissolution of the marriage; orders for maintenance, child support, and child custody usually may not be made in a case in which service is by publication.

Once the sheriff or process server has served the respondent, he or she completes an affidavit of service, stating under oath that the respondent was served with the summons and petition. This is proof that the respondent has notice of the pending action. Anyone who receives such notice and does not respond to the petition does so at the risk of having a judgment entered without being allowed to present his or her case.

Response
Once he or she is served with the summons and petition, a respondent generally has a certain amount of time to file a response, usually twenty or thirty days, depending on the jurisdiction. If the respondent is unable to file a response within the time allowed, the respondent must file a request for additional time. The request itself must be filed within the time period for a response. If the respondent fails to file any response or request for more time in which to answer, he or she may be found in default by the court. This means that he or she may not be allowed to file pleadings in the case at all, and the petitioner may be automatically awarded whatever he or she asked for in the petition. For that reason, it is extremely important that if you are served with a petition for dissolution, you find a lawyer as soon as possible so that your attorney meets the filing deadline and avoids default.

If there is some sort of technical problem with the petition or the manner in which it was served, the respondent might attempt to answer with a motion to strike or a motion to dismiss the petition, which if granted would end the matter on a technicality. However, the court usually will give the petitioner the opportunity to correct the defect, so this tactic may serve only to delay the proceedings.

If there is no reason to file a motion to dismiss, the respondent should file a document answering each specific allegation of the petition, either with an admission, a denial, or a statement that the respondent has insufficient knowledge of the facts of the allegation to admit or deny. If you are a respondent, you will have to decide whether you agree or disagree with the allegations of the petition and what it asks for. If you want to contest the division of marital property that the petitioner is seeking or if you are not satisfied with the custody arrangement that is requested, you should set out in your response your reasons for disagreement. If your spouse is asking for sole or primary custody against your wishes, you should consider making your own request for custody in your response.

Discovery
The process of discovery is the means by which a party to a dissolution action can get information when the other party will not provide it voluntarily. State law rules allow certain ways that each side can demand information and evidence from the other. The rules also provide penalties for refusal to comply with these requests.

Custody Evaluation
When a divorce case involves minor children of the parties, and there has been no agreement regarding custody or visitation rights, courts usually will order a custody evaluation, which is a series of interviews and psychological screenings of parents, children, and any other individual who may be able to provide insight into the best interests of the children.

In a psychiatric evaluation for custody purposes, the subject is likely to be given several tests, which serve to measure the subject’s personality traits and responses to various real-life situations. The tests are designed to correct for the possibility that some subjects may give answers they consider to be the “right” answer, even if the answer given is not honest. Some of these tests also are used to uncover indicators of the potential for mental illness.

The evaluator also will interview the subject, and may interview others whom the evaluator believes can provide relevant information. Sometimes the evaluator will ask the subject to provide the names of people who know and are willing to answer questions about him or her. The evaluator might then speak to these people, or might provide them with a written questionnaire for them to complete and return to the evaluator. The evaluator will take the information provided by all concerned, along with the test results and his or her own opinions, and will make a report of his or her findings, which may include a recommendation as to custody. This recommendation of the custody evaluator is a crucial piece of evidence, one to which a court may give a great deal of weight.

Pretrial Conference
The purpose of a pretrial hearing or conference is to focus the issues that the judge will be asked to rule upon at trial, and to clear up any lingering matters that need to be settled before trial, such as any outstanding discovery requests or objections to evidence or witnesses that the other party will seek to produce at trial. Often, the judge will ask the attorneys to state their clients’ positions, in the hope that the judge can recommend a resolution upon which the parties can agree and thus avoid going to trial. If there is no settlement at the pretrial hearing, the judge will set a trial date.

Trial
The trial is the formal presentation of evidence and legal arguments in support of each party’s case. The admissibility of evidence presented in court is subject to formal requirements under state law. An in-depth discussion of the rules of evidence is beyond the scope of this book. In general, any physical evidence, photographs, documents, or witness testimony that you want the court to consider must be credible and relevant to the issues at stake in your case. In addition, any documents presented must be authentic.

The procedure at trial generally follows a certain pattern. First, the petitioner’s attorney gives an opening statement, in which he or she provides an overview of the petitioner’s position and the evidence that will be presented at trial. Then, the respondent’s attorney makes his or her own opening statement. After this, physical evidence and witness testimony are presented. Each of the petitioner’s witnesses will be examined, that is, asked questions by the petitioner’s attorney. After one witness is examined directly, the other party then will have the opportunity to cross-examine the witness regarding the answers the witness gave on direct examination.

If one side believes the court should disregard a certain piece of evidence or a witness statement, that attorney will object to the admission of the evidence. The court will rule on each objection as it is made, either by sustaining the objection (agreeing with the objection and refusing to allow the evidence) or overruling the objection (disagreeing with the objection and allowing the evidence). It is necessary to object to any problematic evidence in order to be able to raise the issue on appeal.

Your Own Testimony
As a witness in the case, you also need to be prepared by your attorney to testify. For many people, this case will be the first time they have ever found themselves on a witness stand. It can be an intimidating experience. The most important thing to remember is to tell the truth. If you have been honest with your attorney so far, hopefully he or she can mitigate the effect of negative testimony. At the same time, you should take care not to volunteer more information than you are asked for, whether it is your attorney or the other party’s who is doing the asking. Some people, because they are nervous on the witness stand, keep talking even after they have responded to the attorney’s question. Make your answer short and sweet, and then sit silently until the next question is asked. If you do not know the answer to a question, simply state that you do not know. If the other party’s attorney asks you an inappropriate question on cross-examination, it is your attorney’s job to object to the question. If the other attorney asks you a question that is confusing to you, or that assumes an answer, state that you do not understand or are not able to answer the question as it has been posed. If the other attorney asks you a question that requires you to give an answer that has a negative effect on your case, or that impeaches your credibility, your attorney will have a chance to rehabilitate your testimony on redirect examination.

Above all, try not to let your nerves get to you. Take a deep, calming breath, if necessary, before answering. Try to remain fairly still on the stand, because leg-bouncing, finger-tapping, and other nervous behaviors can be distracting to the judge as he or she tries to listen to your testimony.

Decree of Dissolution
After all of the evidence has been presented and the arguments made, the judge will render a decision in the form of a decree of dissolution, or divorce decree. It should cover all of the issues that were raised in the pleadings and at trial, including property distribution and child custody. If the parties have agreed to a property settlement or custody arrangement outside of court, whether before or after the court has heard evidence, the agreement must be submitted to the judge for his or her approval.

Under certain circumstances, a divorce decree may be modified or terminated after it has been entered. Also, all states have procedures by which a divorce decree may be enforced if one of the parties does not abide by the order’s terms (see Chapter 13).

Appeal
If the parties each decide that they can live with the dissolution decree entered by the court, the litigation ends. Those issues are discussed later. If, on the other hand, the outcome is unacceptable to one or both of the parties, the next step is to take the matter to a higher court through an appeal. The party wishing to file an appeal is called the appellant, and the one responding to the appeal is the appellee. Sometimes, both sides file appeals; in that case, the parties are cross-appellants. No new evidence is heard by the appellate court; only the transcribed record of the trial court proceedings, pleadings filed by the parties, and in some cases, oral argument presented by the attorneys are considered on appeal.

As with your decision to proceed with the divorce, you should carefully examine your motives if you are considering filing an appeal of a divorce decree. Appellate work is quite involved and may be expensive. It is more likely than not that the appellate court will refuse to overrule the trial court. Emotions run high in divorce matters, and sometimes the desire to achieve total victory over the other party can cloud an honest assessment of the merits of your position. Consider whether you want to take the chance of losing whatever you were granted by the trial court because there is no guarantee that the end result will be different even if you manage to have the trial court overruled. The case could be returned to the trial court for a new hearing, and the results of that hearing could be less favorable than what you received the first time around.

In order to challenge a final order by the trial court, the appellant must have grounds for the appeal. The most common grounds are either that the trial court made a mistake in applying the law or that the decision of the trial court was against the manifest weight of the evidence; that is, no reasonable judge who considered the evidence in this particular case could have come to the conclusion reached by the trial court. It is very difficult to succeed on appeal using the manifest weight argument. The trial court judge is the one who heard the testimony and reviewed the other evidence first-hand, and, without a mistake in the application of the law, appellate courts are very hesitant to reverse a case on the basis that the trial judge incorrectly evaluated the facts before him or her.

Appellate rules in most states are extremely particular with regard to filing deadlines and pleading requirements. Some state appellate courts go so far as to require a certain size type when preparing appellate briefs. If you feel an appeal is in order, it is not the time to go it pro se. While trial courts sometimes are lenient with litigants, often giving parties a second or third chance to correct pleadings and file documents late, the appellate courts are not so forgiving.

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