By Vic Brown Hill
Most people who face a divorce have never done so before and they do not really know what to expect. Some speak with friends and relatives who have been through a divorce and receive all kinds of information — most of it incorrect — about the process and what to expect. As a consequence, most people go into a divorce a bit confused and with unrealistic expectations.
Basing your expectations in a divorce upon what you read or have been told by your friends is a big mistake. Every divorce case is different. The outcome of a divorce case depends upon the combination of many things. The two most important of those things are the facts of the particular case and how the law applies to those facts. Your expectations in a divorce case should be formed after you have consulted with an attorney who is experienced in divorce matters. The attorney can explain the law to you and predict how the court may apply the law to the unique facts of your case. The attorney can only predict an outcome. There are no guarantees because, ultimately, much is left to the discretion of the trial judge or jury.
The purpose of this article is not to advise any particular person how to proceed with a divorce case. Rather, it is to provide a background of information to help the reader understand the litigation process as he/she interviews and selects counsel for representation. Nothing in this article should be considered legal advice to any particular person.
Initiating The Case
A divorce case, like any other court action, commences with the filing of a document called a Complaint or a Petition. For our purposes, we will call it a Complaint. The Complaint sets forth the basis for the action and what the Plaintiff (the party bringing the action) wants from the Defendant (the party against whom the complaint is made).
The Complaint sets forth various allegations against the Defendant. Some of the allegations are required by law to establish an action for divorce — they appear in nearly every complaint for divorce. Other allegations may be specific to the case in question based upon the facts in that case. Finally, the Complaint states in clear terms what the Plaintiff wants. One of those things is, of course, a divorce.
Once the Complaint is prepared, the Plaintiff must sign a sworn affidavit stating that the facts alleged in the Complaint are true. The Complaint, together with the affidavit, is filed with the Clerk of Superior Court in the county of the Defendant's residence. The divorce case is commenced upon the filing of the Complaint with the clerk.
Service Of Process
The United States and Georgia Constitutions guarantee each person due process of law. There are many facets to due process, but the one that is of most concern in divorce actions is the right to notice of any claim that has been brought against a party. To ensure that a party receives proper notice of the claim for divorce, it is necessary for the Plaintiff to perform "service of process" upon the Defendant.
Service of process may be accomplished in several ways. The most common way is to have the Sheriff of the Defendant's county of residence deliver a copy of the Complaint and a Summons to the Defendant in person. The Sheriff then certifies to the court that the delivery was made on a particular date. The Defendant is considered served upon being handed the Complaint and Summons by the Sheriff.
Another method is to have a private process server deliver the Complaint and Summons to the Defendant. The private process server must be appointed to that role by the court. After handing a copy of the Complaint and Summons to the Defendant personally, the private process server files a sworn affidavit stating that he/she made the service on a particular date. The Defendant is considered served when the affidavit of the private process server is filed with the court clerk.
In some cases, the Defendant will sign a document acknowledging that he/she has been served. If that is the case, any person may deliver the Complaint and Summons to the Defendant. It may even be sent by mail. The Acknowledgment of Service, signed by the Defendant and notarized, must be filed with the clerk of court. Once it is filed, the Defendant is considered served on that date.
When a Defendant cannot be found, he/she may be served by publication. For purposes of this article, we will omit the details of that process because it is used least frequently.
Once the Defendant has been served with process, the case is ready to move to the next step.
Answering The Complaint
After being served, the Defendant should file an Answer to the Complaint. In the Answer, the Defendant either admits or denies the allegations made by the Plaintiff in the Complaint. The Defendant also usually files a Counterclaim in conjunction with the Answer in a divorce case. The Counterclaim is the adult equivalent of the children's rhyme "I'm rubber, you're glue..." — the Defendant effectively says to the court, "you should deny the Plaintiff's request for divorce but grant one to me." Of course, the document is more formal. It makes specific allegations and specific prayers for relief, much like the Complaint.
Since the case has been commenced and all parties have "notice" of it, all further pleadings and papers may be served on the other party (or that party's attorney) by mail or hand delivery. The party sending the document just signs and files a Certificate of Service with the clerk of court. The Certificate of Service merely certifies what document was sent, how it was delivered and to whom. The Answer and Counterclaim (if there is one) are served upon the Plaintiff (or attorney) in one of the methods outlined above.
You may hear that it is not necessary to file an Answer in a divorce case. That is true to the extent that a default judgment cannot be taken against a Defendant who does not file an answer in a divorce. It is important to file an answer, however, to state your position on the Plaintiff's case, to commence discovery and to ensure proper notice of future hearings and pleadings.
The filing of the Answer commences a period called discovery. Discovery is the part of the action during which both parties seek to gather information from the other party and third parties. The information discovered may be anything that is relevant to the case or that may lead to the further discovery of information that is relevant to the case. This may include the behavior of the parties, the parenting abilities of the parties, the finances of the parties and the like. The list could go on and on. As we stated before, each case has different facts. The facts of the case drive the extent of discovery.
The law provides various tools to be used in the process of discovery. These include but are not limited to interrogatories, requests for the production of documents and depositions. What methods of discovery to use is a matter for determination in each case individually based upon the facts of that case. You should discuss discovery with your attorney and decide which methods will be most effective, most efficient and least costly in your case.
The court has the discretion to determine the length of the period of discovery. However, generally one considers the first six months following the filing of the Answer to be the discovery period. The court may lengthen or shorten that period as the court sees fit.
The law allows parties in a divorce case to have a temporary hearing early in the case. The temporary hearing, as the name suggests, is not intended to result in a final resolution of all of the issues. It is a hearing into only those issues that need to be addressed immediately. Usually the issues for a temporary hearing are who gets temporary use of the marital home, who gets temporary custody of the children (if any), who gets temporary alimony (if any), who pays temporary child support (if any) and who pays temporary attorney fees (if any). Ideally, the result of the temporary hearing should be a stabilization of the family during the progress of the case in chief. Thus, any other topic that requires immediate attention may be appropriate for a temporary hearing.
If children are involved in the litigation and their custody is at issue, several other things might arise during the development of the case. For example, it may be wise to have a psychological custody evaluation performed. This may be done by agreement of the parties, or it may be ordered by the court if the parties cannot agree. The result of such an evaluation is a recommendation as to custody/visitation by a qualified psychological expert. Such evaluations are usually expensive and are not necessary or appropriate for every case. Your should discuss the necessity and/or propriety of a psychological custody evaluation with your attorney. You may want to balance the need for the evaluation with the probable cost.
In some cases, the court appoints a guardian ad litem (GAL) for the children. This may be done upon the motion of either party, or upon the court's own motion. Generally, the parties share the cost of a GAL.
The GAL is a person, usually an attorney, who is appointed by court order to represent the best interests of a minor child who is involved in the litigation. The GAL is empowered by the court to investigate matters and report back to the court. The GAL may talk to the children (if age appropriate), talk to teachers, talk to witnesses, talk to doctors and take any other measure that is likely to develop evidence to assist the court. The GAL is usually granted wide discretion by the court. Also, the court usually considers the report of the GAL very seriously in the process of arriving at a judgment. If a GAL is appointed in your case, you should discuss the GAL with your attorney for advice as to how you should interact with the GAL. It is a very important issue.
Most courts now require parties in a divorce action to attend mediation. Mediation is a method of Alternative Dispute Resolution. That is a fancy name for trying to work it out yourselves.
At mediation, the parties and their attorneys meet with a neutral third party called a mediator. The mediator, who is trained in this process, will try to assist you and your spouse to come to a resolution of your case by agreement. The mediator cannot force you to agree to anything. The mediator's role is only that of a facilitator.
If you are able to settle your case at mediation, it is usually a much less expensive alternative to trial. Settlement has the further benefit of allowing you and your spouse to decide what is best for your lives and your children's lives. If you settle your case, you avoid leaving such important issues up the court. You are not required by the court to settle your case at mediation, but you are required to try in good faith.
Once discovery is completed, the case is developed and prepared, mediation has failed and other attempts to settle have failed, the next step is trial. Most divorce cases are tried to the judge as the finder of fact. Either party may demand a jury trial in a divorce, however. If either party demands a jury, the jury cannot determine custody and visitation matters, but can determine financial matters. Jury trials are generally much more time consuming and expensive than bench trials, so this is a matter to discuss and decide with your attorney.
If the case is resolved through settlement, you and your spouse will execute a document called a settlement agreement or other such title. One of the attorneys should draft the agreement for you and your attorney to review. After you have agreed upon all of the language in the agreement, you and your spouse will sign it. Make sure that you understand every sentence of the agreement before you sign it. If you have any questions, ask your attorney to explain it to you.
When you have signed the agreement, one of the attorneys presents the agreement to the court and requests that it be made the order of the court. The court is not compelled to approve your agreement. If the court finds that it does not comply with the law in some manner, or is not in the children's best interests, the court may reject the agreement. However, this seldom happens.
In some counties, the agreement is presented to the court by motion only and the court enters a Final Judgment and Decree that incorporates the agreement. Other counties require a party and his lawyer to appear before the court for an uncontested divorce hearing. This is a simple, quick hearing where the party testifying answers several routine questions and the court either grants the divorce incorporating the agreement or rejects the agreement. As stated before, the court rarely rejects an agreement.
Once the court signs a Final Judgment and Decree, that document is filed with the Clerk of Superior Court. You are not divorced until the Final Judgment and Decree is signed and filed with the Clerk of Superior Court.
If the parties do not settle, a trial will be necessary to finalize the divorce. The course of the trial is too detailed to address here, but after the trial is concluded there will be either a jury verdict or the court will announce its judgment. Either way, the court enters a Final Judgment and Decree that states the court's judgment. Sometimes the court has one of the attorneys draft the Final Judgment and Decree, and sometimes the court's staff does that. Once the court's decree is filed with the Clerk of Superior Court, you are divorced.
This overview of a divorce action is very high level and intended only as a general background. Based upon the facts of each case, there are many other issues to address, decisions to make and strategies to consider. All of them will follow along this basic flow of a case however. Only in rare circumstances does a divorce case deviate significantly from this general flow of events. The various tools and strategies that are available to an attorney are used or avoided in a particular case based upon the experience and judgment of the attorney.
Vic Brown Hill is a trial attorney in Marietta, Georgia. His practice is limited to divorce and other matters of family law. Mr. Hill is a member of the State Bar of Georgia (including its Family Law Section), the Cobb County Bar Association (including its Family Law Section), Phi Delta Phi and other professional and civic organizations. Mr. Hill and his family are residents of Cobb County.