by Melinda Eitzen

How a Litigated Divorce Works

A litigated divorce begins when the attorney for one spouse files with the court an Original Petition for Divorce on behalf of that spouse (For purposes of discussion, let’s assume that your attorney is the one who files the petition.) The petition provides information about you and your spouse and your marriage, among other things. When your attorney files the petition you are actually initiating a divorce lawsuit against your spouse, which means that you become the petitioner in the lawsuit and your spouse becomes the respondent.

As the respondent, your spouse is entitled to file a formal, written answer (or response) to the information in your petition.

A 60-day waiting period begins after the petition has been filed. Even though the waiting period gives you and your spouse an opportunity to decide if you really want to end your marriage, your attorneys will begin gathering the information they need to work out the terms of your divorce during that time. Most of the information will relate to your family’s finances — what you and your spouse own and owe (your marital assets and debts), your individual incomes, your projected monthly post-divorce budgets, and so on; but the attorneys will talk to potential witnesses and may also gather information about your individual parenting skills, health status, lifestyles, and so on. They will pull together most of the information they need using the tools of the formal discovery process.

The attorneys will also obtain information by asking you and your spouse to complete Sworn Inventory and Appraisement forms, which ask you to list all of your marital debts and their amounts and all of your marital assets and their market or current values. If you and your spouse disagree about the value of a particular asset, you may each hire your own outside expert to help you make that determination. If the experts’ information does not end your dispute, the issue will be considered at a court hearing and a judge will decide what the asset is worth.

If there are interim issues in your divorce that you or your spouse want resolved immediately while the final terms of your divorce are being worked out, both attorneys will file temporary motions with the court. For example, you may want the right to continue living in your family’s home while your divorce case is pending, to have primary custody of your children, and to receive temporary spousal and/or child support.

Whenever the attorneys are able to negotiate a temporary agreement on an issue, an agreed order is filed with the court and everything in the order becomes legally enforceable once the judge signs it. If the attorneys are not able to negotiate a temporary agreement on a particular issue, a court hearing is scheduled and a judge rules on the issue after the hearing.

Once the attorneys have all of the information they need, they will try to negotiate the final terms of your divorce based on the letter of the law. Your attorney will keep you informed of any offers or counter offers your spouse may make to you through his attorney, will discuss any offers or counter offers you may want to make to your spouse, and will let you know about any problems that may develop during the negotiation process.
Warning! Your attorney should not sign off on anything related to the final terms of your divorce without your permission.

The two attorneys may be able to work out the final terms of your divorce within the 60-day waiting period, but it’s likely that their negotiations will take much longer — between three and six months in most divorces. Exactly how long will depend among other things on the number and complexity of the issues the two attorneys are trying to resolve, the amount of discovery in your divorce, how willing you and your spouse are to compromise with one another, the number of motions and hearings in your divorce.

If you and your spouse have minor children, other factors may affect the length of your litigated divorce. For example, if the two of you cannot agree on how to handle the custody of your children, a social study may be conducted, which involves a social worker meeting with you and your spouse and your children, coming to your home, talking with your children’s teachers, friends, babysitters, and other third parties, and possibly reviewing relevant records, like your children’s medical and school records, for example. The study results provide insight into your children’s parenting needs and the ability of you and your spouse to meet them. In addition, psychological evaluations of you and/or your spouse and possibly your children too may also be conducted if someone requests them and if the court believes that the evaluations would be advisable. The psychological evaluations, which are conducted by a psychologist, usually a Ph.D. or a psychiatrist, objectively determine whether you and/or your spouse have any mental health disorders, which could affect your ability to do a good job of parenting your children.

Melinda Hartman Eitzen is a partner at Duffee+Eitzen. She can be reached at