By Priscilla Ulloa
Divorce can often feel like a daunting and overwhelming process, especially for those who are unfamiliar with the legal system. I frequently see posts on local Facebook community pages where individuals are seeking guidance on starting the process. To simplify things, it’s important to know that every divorce officially starts by filing a summons and complaint with the court. However, before these documents can be filed, they must first be served on the opposing party. Once the papers are served and filed, the court becomes involved, and the process moves forward.
While the initial steps are standardized, there are various paths to navigate a divorce, depending on the specifics of the situation. Understanding your options can make the process less intimidating and help individuals make informed decisions about their cases.
The ” Menu” of Divorce Processes
When meeting with a potential client, I like to start by introducing the “menu of divorce,” a concept I first heard during a family law seminar in Bismarck. This concept helps me guide clients through their available options based on the details they provide during our consultation. Many individuals are unaware that there are alternatives to the traditional, often adversarial court process. During these consultations, I frequently hear clients express a desire for a divorce that is quick, affordable, and least disruptive to their children’s lives. It’s at this point that I present my “menu” of options, which offers different paths depending on the client’s priorities and circumstances. There are three primary options that an individual can choose from:
1. Uncontested Divorce
An uncontested divorce occurs when both parties agree to all terms, such as property division, debt allocation, and child custody arrangements. Typically, the parties have already had a conversation and sorted through how they will divide their assets and debts and have already created a parenting plan they want to follow. Under this approach, an attorney drafts a stipulated marital termination agreement (sometimes referred to as a stipulation or a settlement agreement) using the information provided by the parties. Once both parties sign the agreement, it is typically filed with the court and finalized relatively quickly.
This process usually takes anywhere from one to three months, depending on factors such as whether children are involved, the complexity of the assets and debts, and the attorney’s timeline. It is important to note that an attorney can ethically represent only one party. In these cases, it is quite common for the opposing party to proceed pro se, meaning they represent themselves. However, an unrepresented party always has the option to hire legal counsel to review the agreement and safeguard their interests. A fully uncontested divorce can typically cost between $1,500 – $3,000. This method remains the most cost-effective and efficient, provided both parties remain cooperative.
2. Semi-Uncontested Divorce
A semi-uncontested divorce arises when the parties agree on most terms but have a few unresolved issues that need to be worked through. These points of contention could include the division of specific assets, parenting schedules, or financial arrangements like spousal support. In these cases, one or both parties may choose to hire attorneys to assist with negotiations and facilitate the resolution of the remaining disagreements. However, much like in an uncontested divorce, it is common for one party to represent themselves. Even so, the unrepresented party always retains the option to hire legal counsel if they feel it is necessary to safeguard their interests or better understand the legal implications of the agreement.
In these cases, the represented party’s attorney, usually the Plaintiff, takes the lead in drafting all the necessary legal documents, such as the marital termination agreement, which outlines the terms agreed upon by both parties. Once completed, these documents are provided to the opposing party for review and approval. At that point, the opposing party (or their attorney if they have one) may suggest changes or clarifications to ensure the agreement is fair and in the best interests of the child(ren) and the parties.
Occasionally, discovery is conducted during a semi-uncontested divorce to clarify specific issues and support the negotiation process. Discovery refers to the exchange of relevant information and documentation between the parties to ensure transparency and allow the parties to consider all the information to arrive at a fair agreement. This may include items such as tax returns, pay stubs, bank statements, vehicle titles, property deeds, appraisals, and other pertinent records. The level of discovery required depends on the complexity of the issues at hand. There are two kinds of discovery: informal and formal. Informal discovery is the voluntary exchange of documents and information, making the process more straightforward and cooperative. On the other hand, formal discovery may involve more structured and thorough methods, such as written requests for documentation and interrogatories to ensure all necessary details are disclosed under oath.
While both parties typically share the goal of reaching an agreement and avoiding trial, the semi-uncontested divorce process can take longer than a fully uncontested divorce. In some cases, negotiations may stall, requiring additional support such as attending mediation or other forms of alternative dispute resolution.
The timeline generally ranges from two to six months, with the exact duration depending on several factors, such as the complexity of the unresolved issues, the availability of necessary documentation, and the willingness of both parties to compromise. This option is still more efficient and cost-effective than a fully contested divorce, as it eliminates the extensive preparation and courtroom proceedings involved in a trial, with costs typically ranging from $3,000 – $6,000.
Overall, a semi-uncontested divorce provides a middle ground for couples who are largely in agreement but need additional time and guidance to resolve a few remaining issues. With cooperation and a focus on compromise, this approach can lead to a fair and efficient resolution without the need for prolonged court involvement.
The Process Of An Uncontested Or Semiuncontested Divorce: What To Expect
Within both uncontested and semiuncontested divorces, procedural strategies vary based on the level of cooperation between the parties. For instance, some attorneys prefer to hold off on serving or filing the summons and complaint until the proposed marital termination agreement is ready for the opposing party’s review. Others may serve and file these documents immediately to trigger official deadlines while simultaneously drafting the agreement. Filing the case before an agreement is reached is sometimes helpful in motivating the parties to work promptly and efficiently on resolving the matter. Once the agreement is ready, it is then filed with the court for its approval.
What Is The Marital Termination Agreement?
The marital termination agreement is a legal document essential in uncontested/semi-uncontested divorce proceedings and typically ranges from 10 to 30 pages. This agreement serves as a blueprint for the post-divorce lives of both parties and addresses various critical aspects of their separation.
Key components of the agreement include a detailed parenting schedule that outlines custody and visitation arrangements, holiday and summer schedules, provisions for child support, and the division of marital property and debts. It also specifies how the parties will handle their taxes, including whether they will file jointly or separately for the relevant year and who will claim the children as dependents for tax purposes. Additionally, the agreement may address whether either spouse intends to revert to a previous name or adopt a new name as part of the divorce process. As noted previously, once the agreement is finalized and signed by both parties, it must be filed with the court for judicial review. The judge evaluates the agreement to ensure it complies with applicable laws, is equitable, and serves the best interests of any involved children. Depending on the judge and jurisdiction, the judge may approve the agreement without a hearing. In other jurisdictions, a hearing may be required to finalize the agreement, during which the parties may need to appear and confirm their understanding and acceptance of its terms.
After judicial approval, the agreement becomes the controlling judgment of the court, commonly known as the divorce decree. This judgment legally formalizes the divorce and establishes binding obligations and rights for both parties moving forward.
3. Contested Divorce
A contested divorce arises when significant disagreements exist between the parties. This option often necessitates a trial to resolve the disputes, making it the most time-consuming and expensive path. A contested divorce in North Dakota can take anywhere from six months to over one year to finalize, depending on court availability and the complexity of the case. The process involves multiple phases, including formal discovery, motion filings, and other pre-trial practices that can extend the timeline significantly.
Once the summons and complaint are served, the opposing party has a set timeframe to respond, which often includes filing a counterclaim. The initial party then gets time to respond to the counterclaim. From there, deadlines are set for discovery, motion filings, and other pre-trial matters. These can involve requirements to complete parenting courses, appraisals of property, and the engagement of parenting investigators to assess custody arrangements. At this point, the parties can also engage in formal discovery, such as interrogatories, issuing subpoenas, and holding depositions.
If children are involved, North Dakota mandates participation in the Family Law Mediation Program unless a protection order exists between the parties. Mediation is designed to help resolve disputes amicably before resorting to trial. However, scheduling mediation sessions can take several weeks, sometimes months, further extending the overall timeline.
During the contested divorce process, interim motions are commonly filed to address temporary but critical issues that arise while the case is pending.
These motions often involve matters such as child custody, child support, the payment of shared bills, and determining who will remain in the marital home during the interim period. Each interim motion generally requires a hearing, where both parties present their arguments, supported by evidence, for the court to decide. Think of it as a “mini-trial.” Interim decisions are binding until the final divorce decree is issued, ensuring that the parties have clear guidance and stability during what is often a challenging time. However, because each motion involves judicial review and scheduling, it can contribute significantly to the length and costs of divorce.
In North Dakota, the cost of a contested divorce can vary widely, typically ranging from $10,000 to $30,000 or more. The final cost often depends on several factors, including the number of unresolved issues and the degree of conflict between the parties. It is important to note, however, that a settlement can be reached at any point before trial. Settling can save significant time and financial resources, as well as reduce the emotional toll that comes with prolonged litigation.
If the parties are unable to reach a settlement, they will proceed to trial, using the evidence gathered during the discovery phase to build their respective cases. A divorce trial typically lasts between one and three days, depending on the number of issues to be addressed. Once the trial concludes, however, the judge has up to 90 days to issue a final ruling.
So, unlike what is often depicted in movies, you could find yourself waiting several months after the trial before receiving the final decision.
Conclusion
The divorce process can be overwhelming, but a family law attorney can provide the guidance you need to navigate it with confidence. From evaluating your options to handling negotiations, mediation, or court representation, an attorney ensures your rights are protected and the process runs smoothly. If you’re ready to take the next step, call me at SW&L Attorneys at (701) 297-2890.
SW&L Attorneys
4627 44th Ave S, Ste 108,
Fargo, ND
701-297-2890
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