The Legal Steps in a Contested Divorce

Posted by on Jan 19, 2015 in Divorce

The mention of one’s intent to divorce his or her spouse can usher in a mixture of emotions – of fear, of worry over the future, a feeling of not being a good spouse or the feeling of being a failure. Divorce can be a really painful and demoralizing experience, especially for women who have given up career and other professional chances to be able to fully support their respective spouses and care for their family. But if divorce itself can already be a dreadful experience, how much more will a contested divorce be?

As noted by the Raleigh divorce attorneys, there are two types of divorce recognized in the US: contested divorce and uncontested divorce (each is the opposite of the other concerning settlement of major divorce-related issues, like child custody, visitation rights, child support, division of assets and properties, allocation of debts and spousal support).

In a contested divorce dispute or disagreement, due to personal intents and/or interests, clouts the whole divorce process, causing a failure for the spouses to agree on the terms of some or all of the divorce-related issues. Not being able to reach an agreement, however, will mean that they will have to go to court and allow the judge to decide on the disputed issue/s instead. This decision is legal and, therefore, binding.

Here are the legal steps observed in a contested divorce:

  • Meeting with a lawyer: after gathering all information relevant to the divorce, such as about marital assets and children, the lawyer will determine what the divorce petitioner may be entitled to; he/she will then prepare and file your petition in court
  • Serving of divorce petition to spouse: after having filed the petition in court, this will then be served on your spouse through mail, by your lawyer personally, or by a deputy sheriff. A notice of the petition will need to be published in local newspapers if your spouse cannot be located and, due to this, moving ahead with the divorce will have to wait to give your spouse time to respond
  • Spouse responds to the divorce petition: most states give the petition recipient 30 days to respond. Failure to do so can result to a default judgment of divorce. Responding, however, will lead to the next step, which is the discovery period
  • Discovery: this is the time when spouses further acquire thorough information (through depositions, request of document and written interrogatories) from one other about income, marital assets and other matters vital to their divorce case. During this time the spouses can also request for temporary court orders regarding alimony or child support
  • Settlement: despite having gone through the steps prior to this, many judges still encourage the spouses to arrive at agreeable terms by themselves before he/she sets the final date for the trial. If they are not willing to settle matters amicably, though, then the next step follows
  • Trial: there really is no telling exactly how long (or short) a divorce trial will last. This depends on how complex your case is, the time required to hear and cross-examine witnesses, the laws of your state regarding divorce, and the number of divorce cases being heard and/or still pending in your local Family court. The judge will also make sure that he/she hears all pertinent issues first before deciding on all matters that need settlement
  • Post – trial motions: a total of 60 days is usually allotted for this particular step. Within the first 30 days, starting on the day the judge signs his/her decision, either of the spouses may file a post–trial motion for relief from decision. The other 30 days are allotted to the other party to respond to the motion filed
  • Appeals: denial of a post – trial motion will give the spouse who filed it another 30 days (from the day of the denial of the motion) within which he/she may file a notice of appeal. The other party also has 30 days to file his/her response brief. In most states, spouses are granted time for oral argument before the court again makes a final decision. Reversal of the case will require the appellate court to send the case back to the trial court for further proceedings; if the case is affirmed, though, then the divorce case is considered over

There are two very important things for divorce cases: truthfulness of the client in all matters pertaining to the divorce, especially about marital assets; and, truthfulness of the lawyer towards his/her client, providing such client with all the vital information regarding the case even if it is not the kind of information the client exactly wants to hear. The said law office also states that the divorce process can be a really dreadful and complex experience, making the presence of a good divorce lawyer, for proper representation, a necessity.

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The Changing Rules of Texas Alimony Enforcement

Posted by on Nov 2, 2013 in Alimony, Divorce

To say that the laws affecting the enforcement of spousal maintenance and contractual alimony are in flux would not be overstating the case. Any divorce lawyer contracted to assist in getting some action going against an ex-spouse who fails or refuses to pay alimony would have to be updated with the many changes that have been implemented regarding alimony in Texas.

As a whole, Texas considers alimony against public policy, and will only award it under specific conditions and for a limited time. Failure to comply with court-ordered spousal maintenance is considered contempt of court and may involve prison time for the non-compliant spouse. According to an article on the BB Law Group PLLC website, a divorce lawyer would be of invaluable assistance in enforcing alimony payments.

In some divorce settlements, provisions for alimony (contractual alimony) were included as a way to offset property division of community property which cannot easily be liquidated or would diminish significantly in value if so liquidated may be approved by the court in the final divorce decree. Until quite recently, the court could not cite the defaulting ex-spouse for contempt of court because contractual alimony is not court-ordered, although it is court-approved. The receiving spouse could however find relief by suing the ex-spouse for breach of contract.

An amendment provided that the receiving spouse may request that the amount of the contractual alimony be withheld from the ex-spouse’s wages provided that the divorce settlement specifically includes this in its methods of enforcement. A more recent amendment in the Texas Family Code now allows the court to cite the ex-spouse in default for contractual alimony payment for contempt provided that:

  • It complies with the rules, conditions and limitations set forth in §8.059 for spousal maintenance
  • It does not exceed the maximum amount allowable under law unless the contract specifically provides for it

Even with these amendments, enforcement contractual alimony remains limited. You need a divorce lawyer to tell assess your case and to inform you of your legal options for enforcing the payment of alimony.

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