07 May What Does a Divorce Attorney Do?
A divorce attorney represents clients who are considering the dissolution of their marriage. The tasks and actions a divorce attorney does depend a lot on the complexity of the particular case and includes dividing assets, settling alimony and child support concerns, arranging for the custody of children. Since divorce is an extremely difficult challenge for all parties involved in the process, a divorce attorney must also be able to work with and manage the client’s potentially powerful emotions.
Determining the Facts Before Filing for Divorce
Before a client files for divorce, the divorce attorney will schedule a meeting with the individual to discuss all the facts and examine the details of the particular divorce case. This step is vital in being able to determine whether the attorney will be able to achieve the client’s goals.
During this preliminary investigation, the lawyer will determine the client’s goals and predict probable outcomes. Additionally the attorney will outline the procedure and notify the client as to any responsibilities he or she may have throughout the process.
In the event that a prenuptial agreement was signed before marriage, the attorney will also help interpret the document. Having such a document can both expedite and simplify the frequently complex process of divorce.
When you meet with your attorney, you’ll want to learn what court you’ll need to file your divorce in and what you need to do if you can’t find your spouse. This second question is important because the spouse must be officially notified of the divorce in order for it to be legally valid.
Filing for Divorce
After the preliminary investigation and once the client is ready to seek a divorce, the attorney will be responsible for filing a summons and a complaint (sometimes called a petition) with the appropriate court. The court will depend on where you and your spouse live. As legal documents, the summons and complaint notify the person being divorce from the reasons for the legal separation. In the petition for dissolution, the parties will be referred to as “petitioner” and “respondent.” The spouse filing for divorce is the petitioner.
Under most circumstances, the spouse being filed against must be officially notified. The preferred method is to have the divorce complaint handed to them in person. Once the spouse has been served the complaint or petition, the court process for ending the divorce can begin.
After the party has been notified that the divorce process has been initiated, he or she has the opportunity to file a response to the claims, present their own defense against the claims or provide her or her own unique claims against the spouse.
The Attorney’s Role in an Uncontested Divorce
When both parties agree as to the terms of a divorce, this uncontested divorce usually does not go to trial and instead involves settlement outside of court through the use of a Marital Settlement Agreement and Parenting Plan. Throughout this process, the divorce attorney will be able to represent the client to ensure their rights and property are protected.
In general during an uncontested divorce, the spouses agree to the major issues in a divorce including:
-how each parent will share parenting responsibility and time
-how long and how much any child support payments will be
-how long and how much any alimony or spousal support will be
-how property and assets will be divided
-how all debt and liabilities will be divided
When spouses are able to come to an agreement on these major issues, court appearances will unlikely be necessary.
No uncontested divorce is the same as any other, and they aren’t necessarily always smoothly resolved. When no minor children and few assets are shared between the spouses, the divorce case is usually much smoother. Additionally, self-supporting spouses or for those who can easily become such find the divorce process much more expedient. Some states have particular procedures for spouses in such situations to make things easier.
During an uncontested divorce the attorneys from each party will represent the clients in order to reach an agreement outside of the courthouse. The attorney becomes the client’s advocate and can negotiate the division of assets and liabilities for the client and work with the spouse’s attorney to come to a mutually agreed upon solution.
The Attorney’s Role in a Contested Divorce
Much more complicated than an uncontested divorce, a contested divorce happens when one or both of the spouses are unable to come to an agreement on one or many of the issues concerning their divorce. In this form of divorce, the spouses end up in court where they rely on a judge to make the final decisions for them.
Since the spouses have not come to an agreement on the issues, and the case must go to court, contested divorces can take much longer and will require more services from the divorce attorney.
The first step the divorce attorneys must perform when dealing with a contested divorce is to use various legal measures to gather all information from the spouse and third-party witnesses such as written questions, subpoenas, and depositions. After adequate information has been gathered the attorney will walk the client through pre-trial legal motions and any necessary hearings.
Before going to court, the divorce attorneys from both parties will work to submit settlement proposals and negotiate terms in an effort to prevent going to court. Many times some of the issues can be worked out reducing the amount of time needed in court. Divorce judges advise spouses to work out as many issues as possible before going to court. Out of court settlement can save both time and money for the couple seeking divorce.
In the event that a settlement cannot be reached, the clients and their attorneys will prepare for trial and argue the case in defense of their clients. Both parties present witnesses which are cross-examined by both parties’ attorneys. Closing arguments will be presented and at the end of the court procedure, the judge will make a decision finalizing the divorce. If one of the parties feels like the decision was wrong, they have the right to dispute it and appeal.
Child Custody and Support
When a couple has minor children together, the chances of having an uncontested divorce decrease. Child custody issues are at the front and center during any divorce process. Many important decisions that influence the future of the child or children must be settled.
A divorce attorney will work with a parent to help them both articulate their wants and needs and help them achieve their goals throughout the divorce. Spouses will need to determine whether they will share joint-custody or if one parent will have sole custody and the other visitation rights. Additionally parenting time must be divided as well as decision making power for medical, education and similar life issues.
The best interests of the child will be determined in court. Each state has different ways of evaluating the child’s best interests. The divorce attorney will help the client identify factors that could help their child custody and support case in court. Having a divorce attorney during a child custody hearing is vital to achieving the goals and protecting your legal rights.
Divorce and Dividing Up Property
Regardless of whether a divorce is contested or not, in most cases the spouses must determine how they are going to split up their shared assets. Property includes anything that was bought together like real estate property, paper assets like stocks and bonds, as well as jewelry and other belongings. The divorce attorney plays an instrumental role in protecting the client’s rights and ensuring a fair agreement is being reached during this step.
Alimony is another issue the divorce attorney will be integral in helping resolve. The goal of alimony or spousal support payments is to help a lower-income spouse or a spouse who has been out of the workforce get through the divorce process and transition to a self-supporting position. The divorce attorney will help determine how much alimony payments should be and for how long they should be paid. Over the last decade alimony has become less popular with courts and if spouses earn similar incomes, it is infrequently awarded.
The role of the divorce attorney is diverse and integral to achieving the client’s goals during the difficult and complex process of divorce. Having an attorney on your side before filing for divorce can ensure your rights are protected from the beginning and the process is initiated properly. An attorney can also increase the chance of settling outside of court as well as helping spouses reach agreements on challenging issues like child custody and the division of property.