Before You File for Divorce: Preliminary Decisions

You have poured over the names and references given to you by your closest friends and family and checked those out on the Internet and selected the lawyer that you believe is best suited to help you through this tough process. Now you must begin to communicate the important details of your case to your lawyer and make some important decisions that may affect what your post-divorce life looks like. This will require many pieces of information and documents that your lawyer will need at the outset of your representation. This information and exchange of documents will occur at your initial meeting after you have hired your divorce lawyer. From there your attorney will be better situated to help you make the important preliminary decisions that may affect your post-divorce life.

Do I need to have a “ground” for getting a divorce?

You may have heard terms like “irreconcilable differences,” “mental cruelty,” and “adultery” in reference to grounds for divorce. The term “ground” refers to the reason you are seeking this legal dissolution of your marriage. In most states, there are multiple grounds for divorce. One ground each state offers is “no-fault,” meaning there does not need to be a showing of wrongdoing by either party. The fact that one party considers the marriage irrevocably broken means that a divorce can take place. No-fault divorces are available in all fifty states. Most divorces are granted on such “grounds,” even though other grounds may exist.

By contrast, there are also “fault-based” grounds for seeking a divorce. These could include mental cruelty or adultery, but more and more, courts are not basing the divorce on these grounds. Of course, there are cases in which a person is determined to receive a divorce based on the adultery of the other spouse, and the judge will grant the divorce based on this claim. However, in most cases, the judge or your attorney will ask during direct or cross-examination, “Do you believe that this marriage is beyond repair?” If the answer is yes, then that is all a judge needs to know. Nevertheless, adultery and abuse may still be vital components of your case. These facts may be important during the negotiation phase of the divorce. For example, in some states adultery may be a complete bar to alimony, and child or spousal abuse will almost certainly affect the court’s custody determination.

What magnitude does adultery have in a divorce proceeding?

At this point, it is important to note that you should forget what you have seen on Divorce Court reruns regarding adultery. In most states, the court will not grant you extra money as a result of your spouse’s adulterous affair. However, in some states, adultery may affect the Court’s decision on alimony and property division. Adultery may also play into the court’s determination of how to divide property and parenting time with the children. But more important than the mere presence of adultery is how it took place (for example, were the children in the next room?) and how that may demonstrate a parent’s poor judgment. You should consult an attorney in your jurisdiction to get legal advice regarding the consequences of an adulterous relationship.

Judges are likely to consider adultery among countless other facts. In some states, adultery may not be relevant at all. Remember, the judges handling divorce cases have heard a thousand stories about adultery. For better or worse, many judges have become desensitized to most of this—and they want to address the future, not try to fix the past. Generally, judges will not focus on adultery unless you decide to lie or cover it up. The price of lying is that you effectively alienate yourself from the judge on every contested issue. For example, if you lied to the judge about your adulterous affair, what makes you think the judge will believe you when you say that you cannot afford to pay alimony? Judges are human and they do not forgive people who lie to them in their courtrooms and often punish such liars severely.

What are some of the other grounds for divorce?

While there are many grounds for divorce, and many “conduct” issues a court may look at, some of the most common ones, other than adultery, are spousal abuse, drug and alcohol abuse and abandonment, meaning leaving a spouse for a long period of time with no support given. These are infrequently used as grounds for divorce, since the court need only determine the marriage is over in order to grant the divorce. But these issues can be raised to show the court why it is inequitable or unfair for one spouse to receive, or not to receive certain property or alimony. These issues certainly may also be relevant to the issue of custody and visitation.

Should I move out of the house and get an apartment?

Whether you should move out of the marital residence is a question that you should discuss with your attorney during the initial meeting or very soon after. Deciding when and how to move out of the home you have been living in with your spouse is up to you, but there are important factors that you must consider prior to making your decision. For example, do you hope to gain ownership of the house in the divorce? Do you hope to live there when your divorce is final? Judges are human. Like most people, they are unlikely to change something that seems to be working. They want to maintain the status quo. If you want to eventually live in and receive ownership of the marital estate, stay in the house as long as possible (unless of course there is domestic violence). You should be aware that all states require a period of separation without cohabitation. Generally, staying in your marital home will not violate this rule as long as you do not have sexual relations with your spouse and perhaps you sleep in different rooms. Nevertheless, you should consult an attorney in your state regarding your decision to stay in the marital home.

Of course, in cases of spousal abuse, continuing to live together may be impossible. Nevertheless, when cohabitation is possible, often it is best to let the judge be the one to remove you or your spouse from the house, unless your spouse will voluntarily move out. But that will be a decision you need to make after discussing it fully with your lawyer. At the end of your divorce the judge may not want to rearrange everyone’s lives—especially if children are involved. If you move into an apartment and your spouse is living in the house, the judge may think, “Well, this person seems to be taking good care of the house and the children seem to be adjusting well. I guess they should retain ownership.” Your goal right now is to set up the life situation you hope to maintain after the divorce. If you want the house, live there. If you want full custody of your kids, within reason, keep them with you. But know that judges dislike parents who keep children from other parents, so unless there are very good reasons that your spouse should not get quality time with the children, you should do what is in your child’s best interest. Of course, if there is violence or potential harm, you should never put yourself or your children in a dangerous or vulnerable situation, and you should always call 911 if violence occurs.

What is legal separation?

The definition of “Legal Separation” varies from state to state, but typically it means that a husband and wife are no longer having sexual relations and consider themselves separated. In most states you do not need a court to grant a “Legal Separation.”

Can I get temporary support for my kids and me during my separation?

Talk to your attorney immediately and explain that you are responsible for the care of your children and that you need to work out an arrangement with your spouse about monthly expenses. Do not assume that an estranged spouse will be flexible and understanding just because it involves the children you both love. A divorce involves highly charged emotions and sometimes, while tragic, children can be caught in the conflict. That is why all states have specific rules and guidelines concerning child support. Ask your attorney if he has these statutes prepared in an easy-to-understand document. You can reach a temporary arrangement to cover your and your child’s needs, either by agreement or by court intervention.

Should I keep my plans for divorce secret from my spouse for now?

You should talk to a lawyer before talking to your spouse about divorce. Undoubtedly, one of the hardest transformations for a person is to go from “husband and wife” to “husband vs. wife.” For the most part, you have been working and thinking as a couple. Nevertheless, you have to think about yourself and what is best for you as an individual. This point bears repeating—you are becoming an individual and you must protect yourself.

It may be hard to think this way. You may still have deep feelings for your spouse, complicated by anger, love, guilt, depression, or confusion. However, once you decide that you are going to get a divorce, or once your spouse makes that decision, your identity as a couple transforms into two individuals. A divorce is an individual process and your lawyer cannot represent two people. Your lawyer can only represent you and your interests. Rest assured your spouse will get a lawyer to represent him or her and their interests. Do not be naïve and believe that your spouse and their lawyer will be looking out for your best interests when it comes time to discuss division of property, money, and child custody.

Divorce can be an adversarial process and therefore if you choose to begin preparing documents and financial affidavits before you approach your spouse about getting a divorce, you should keep these documents in a place where you are sure that your spouse will not find them. Be absolutely sure! You may wish to purchase a new safe deposit box (not the one you share but he never goes into—there’s always a first time.) You may decide to store the papers with a trusted relative or friend, someone you feel strongly will keep your plans a secret. However, remember that once you reveal your intentions to someone, even your mother or oldest school friend, the secret is shared. Even a loving parent who is firmly on your side may slip up and talk about your impending divorce with others. You should be prepared to have your spouse discover your intentions before you are ready to confront him or her with it.

If you want to try to maintain complete secrecy for a while, do not tell anybody, except perhaps a therapist who you do not share with your spouse and who is required to maintain your confidence, until you are ready to file for divorce and serve your spouse with divorce papers. Your family and friends will understand that divorce is a sensitive matter—and one of the most personal decisions anyone can make.

What are the first documents filed?

After your initial consultation, your attorney will draft and file your “Petition for Divorce,” detailing for the court the reasons you are entitled to a divorce and what you are asking for such as custody, alimony, and property division. Your lawyer and you will review the documents very carefully to ensure they are accurate. But once you authorize your attorney to file them, you will have begun litigation and a divorce lawsuit will be pending. These divorce papers will then be “served” (delivered) to your spouse. If you and your spouse have already agreed on everything, then all papers will be signed by both of you. Otherwise, you are in a “contested” divorce until settlement of all issues is reached. How the papers will be served on your spouse and the exact language in them is something your lawyer and you should discuss and agree upon. The question of how to “serve” your spouse, how to give him or her proper legal notice that the case has been filed, is a very serious one that requires much thought. You will be viewed by your spouse as sending a message. The question is, do you want that message sent by sheriff, private detective or letter? There are many other variables to consider such as will it be difficult to get the documents to your spouse? If your spouse already has a lawyer, the process of serving him or her should be much easier as most lawyers will be able to have their client accept service by signing a document either lawyer prepares indicating that the recipient is aware of the lawsuit.

After the spouse has received the Petition for Divorce, he and his lawyer will prepare the “Answer,” the document containing the response to the Divorce Petition. It sets forth what the parties agree about and what they disagree about. For instance, the parties will usually agree that they are married and that they live in a certain county and state. They may even agree that there is a custody dispute. But they may indicate that they disagree about things as well such as whether there exists any premarital property. The contents of the Answer will depend on what is written in the Petition. Often, contained within the Answer is a “Counterclaim” or “Countersuit” for divorce indicating that the defendant is also suing for divorce.

Once these preliminary tasks are complete, you will be in the pre-trial phase of your case. Generally, this is the phase of your divorce where you and your spouse will be asked to exchange information and possibly be deposed, or questioned, under oath, by opposing counsel about specific facts of your case. In the next chapter, we will discuss what you can expect during your deposition and what documents can be requested.

Contact Us

The Atlanta divorce attorneys of Kessler & Solomiany, LLC are here to help you transition into the new life of freedom and happiness that you deserve. We are here to help guide you through the process and will always give you the advice that best suits your situation. If you are considering divorce and need assistance with the preliminary considerations, don’t hesitate to contact us at (404) 688-8810 to schedule an initial consultation with us today.