Because of the way most weddings take place in the United States, it is easy to forget that marriage is a legal contract with the state, not just a set of vows between partners. Technically speaking, divorce is the legal process of both parties agreeing to dissolve the terms of the contract. As such, the courts are required to get involved. How deeply the courts become involved, however, is up to the parties.
Understanding the divorce process before you sit down with your spouse to discuss a settlement will go a long way toward easing much of the stress that is generally part of every divorce or family law matter. By knowing the steps you and your lawyer will go through regarding a property settlement and child custody over the weeks and months can give you confidence that you will come out on the other side with goals intact.
“Most divorces proceed in a step-by-step manner. Despite the uniqueness of your divorce, you can generally count on one phase of your divorce following the next. Sometimes just realizing you are completing stages and moving forward with your divorce can reassure you that your divorce will eventually come to a conclusion. Developing a basic understanding of the divorce process will lower your anxiety when your attorney starts talking about hearings, depositions, or going to trial.” Excerpted from Divorce in Louisiana, The Legal Process, Your Rights, and What to Expect.
Although it is not legally required to hire an attorney to file for divorce in Louisiana, as soon as you have made up your mind to file, it is your best legal option. Many people filing express frustration with the length of time the legal process takes. Under Louisiana law, a divorce cannot be granted within 180 days of separation for couples without children or one full year for couples with children. That long of a wait alone can be frustrating for people who want to move on with their lives. But during this time, your lawyer will not just be sitting still. The waiting period is necessary for both parties to work out the details of contended issues through a negotiated settlement, rather than a costly trial, if court can be avoided.
After you retain an attorney, paperwork will be filed with the court in the parish in which the filing party resides. Either party may choose to file the formal divorce action and serve the other party with papers requiring a response. At that point, the responding party generally hires his or her own attorney.
The first legal step is known as the discovery period, which may take several months. During discovery, your lawyer will be in contact with your spouse’s lawyer, including sending a questionnaire known as an interrogatory, requiring financial statements and depositions regarding the reason for the divorce and desires concerning a property and/or custody settlement. If there are further questions regarding financial statements and other contested issues, your lawyer may also subpoena your spouse to provide a deposition — a verbal or written statement made under oath.
The discovery process also involves gathering testimony from independent experts and family law specialists, particularly involving children’s welfare.
Of course, you should expect your spouse’s attorney to require discovery evidence from you, as well. Your attorney will help you with preparing the documents and what to say if you are subpoenaed for a deposition.
Types of discovery include: Interrogatories — which are written questions that must be answered under oath. Requests for production of documents — asking that certain documents be provided by you or your spouse. Requests for admissions — asking that certain facts be admitted or denied. Subpoena of documents — requesting documents from any party that might have them.” Excerpted from Chapter 5, The Discovery Process, Divorce in Louisiana, The Legal Process, Your Rights, and What to Expect.
Following discovery, all collected documents will be used as evidence and submitted to the court for review. The evidence may be used in a trial, so a judge must determine that it was legally collected. The judge will hold a hearing with the attorneys to discuss the records and reports and possibly set a court date. If children are involved in the divorce, a custody and parenting plan will be submitted to the court at this time, as well. Attorneys will be ordered to do everything they can to seek a mediated or negotiated resolution through means of alternative dispute resolution.
Armed with an understanding of what each spouse desires from the settlement, the parties and their attorneys will begin the process of negotiating a settlement. Although many divorcing spouses think they have worked out everything at their dining room table, there are almost always some issues that remain to be resolved. Often, spouses forget that a judge can’t allow a “negotiated” settlement to be heavy-handed and unfair to either party. Remember, the divorce settlement will ultimately be a court judgment, subject to appeal. Judges will review the final settlement proposal carefully before approving it for judgment. You may be required to attend the final adjudication hearing.
Not all divorces end amicably. Getting a judge involved is sometimes necessary. Whether you must appear one time at an evidentiary hearing or several times to present testimony and evidence depends upon the complexity of the dispute with your spouse. You should expect a judge to hear all evidence and make the final decision in what is commonly referred to as a bench trial. If your case proceeds to trial, you will be required to attend every hearing and court date. Through everything, your attorney must be present to advocate on your behalf and assist you in every way possible.