Frequently Asked Questions

Questions about divorce

My spouse wants a divorce but I don't. What can I do?

How long does it take?

We've already filed a petition and we've hired lawyers. Is it too late to consider mediation?

How does a divorce with lawyers differ from a mediated divorce?

• What Happens in a Typical (Litigated) Divorce?
• What Happens in a Typical Mediated Divorce at Common Sense Mediation?

One spouse (the Petitioner) goes to a lawyer. The lawyer files a petition which informs the court the parties want a divorce and starts a 6-month clock going with the court.

The other spouse (the Respondent) receives a summons, a copy of the petition, and financial interrogatories. These have to be answered within 30 days, so usually the Respondent will also hire an attorney to file a response to the petition and help answer the financial questions.

If the couple can’t work these things out themselves, there may be court hearings on one or more of the following:

• temporary custody
• temporary maintenance
• temporary child support
• temporary possession of the marital residence
• payment of the usual bills

Settlement talks begin in one of two ways. Either the attorney for the Petitioner drafts a Marital Settlement Agreement setting out how that attorney and client think things should be settled. The Petitioner’s attorney sends it to the other attorney who consults with his client. At this point, usually one attorney will call the other. Each attorney will call his or her client to discuss the latest proposals. Then the attorneys will talk to one another again. This will continue until all disputed areas are settled.

A more effective and efficient method that is also commonly used is to begin the process with a 4-way conference in which both spouses and their attorneys work sit down together and work out the details; Then the Petitioner’s attorney drafts a Marital Settlement Agreement to match what was agreed upon. The draft is sent to the other attorney and they dicker over whether the details match what was decided in the 4-way conference.

Sometimes there are depositions about now where one or both of the parties will testify before a court reporter about the children or the family’s finances.

Once everything is agreed on and the documents are finished, the Petitioner’s attorney arranges for a court date. The Petitioner and his/her attorney go to court on the appointed date and the Petitioner testifies about the agreement that has been reached. If the Respondent is present (with his/her attorney if he/she has one.), then the Respondent will also testify. The judge will then speak briefly about the case, establishing that the legal requirements have been met and will declare the marriage to be over. The time spent in front of the judge is brief, usually about 4 or 5 minutes, although the wait for your turn may vary.

About 4 weeks after the court date, the attorney will pick up the court reporter’s transcript of the court proceedings, make any necessary corrections, and file it with the court.

There will be variations of this general process to match the needs of the spouses, the attorneys, and the court. If the divorce is not finished within 6 months of the filing of the petition, the attorneys will have to go to court to tell the judge when they expect the case to be settled and what disputes remain to be settled between the parties. The judge will then set a date for the attorneys to return and report on their progress. These court calls will continue (roughly monthly) until the case is finished or goes to trial.

What Happens in a Typical Mediated Divorce at Common Sense Mediation?

One or both spouses declare their desire to divorce. They contact Common Sense mediation and make an initial appointment. At the initial appointment the mediators sit down with both spouses and provide a brief orientation to the mediation process. A mediation agreement, setting out ground rules for the mediation process, is discussed and signed by all parties.

The issues in this couple’s situation are listed so that everyone know what issues to expect to be covered over the course of mediation. Each spouse gets a chance to tell the story how they came to be divorcing. Each is asked about their personal goals for the life they hope to have after the divorce is behind them.

At the first session, the couple begins working on one or more of the issues that need to be decided. This may be an issue which is urgent (like getting immediate bills paid) or, if there are no urgent issues, they will begin work on some part of the list of issues that has been created. They will decide how soon to meet again and set their next appointment.

Before they return for their next joint session, they will each do two things:

•  fill out financial forms on their assets, their debts, and their present expenses and anticipated post-divorce expenses.
•  meet individually with the mediators to discuss any issues that either the spouse or the mediators may not want to discuss in front of the other spouse. The content of these individual sessions will not be disclosed to the other spouse by the mediators

At the second and subsequent sessions, the spouses will continue to work on the issues that need to be decided, reaching tentative agreements on each with the understanding that they will not agree finally on the parts until they have everything decided and can look at the parts in relation to each other. They may have things to research between sessions, such as costs of future housing, or appraisals of a house or other assets so they can make well-informed decisions. They may want to consult with accountants, attorneys, or other experts.

Once everything is decided and agreed upon, Gail Schiesser will draft the court documents and send copies to each spouse for them to review. The spouses have agreed to each have an attorney look over the documents as well. Any desired changes are made, with the help of a mediation session to work out the details if needed.

Final copies of the Petition and Appearance and other needed court documents are signed by the spouses. Gail files them with the court and obtains a court date.

A day or two before the court date, the spouses meet with the mediators to prepare for court. Gail gives the spouses a script they can use when they appear in front of the judge and answer their questions about court procedure. The final Marital Settlement Agreement (and Joint Parenting Agreement if the spouses have agreed on joint custody of their children are reviewed again and any needed corrections are made. The original of the documents is signed, and the mediators make copies for each spouse.

On court day, the mediators meet the spouses outside the courtroom, answer questions and help calm nerves. They also take documents to the courtroom clerk. Together the mediators and spouses wait for the case to be called. When their names are called, the spouses step in front of the judge, are sworn in, and either read the text prepared by the mediators or answer the judge’s questions. The judge will then speak briefly about the case, establishing that the legal requirements have been met and will declare the marriage to be over. The time spent in front of the judge is brief, usually about 4 or 5 minutes, although the wait for your turn may vary.

About 4 weeks after the court date, Gail will pick up the court reporter’s transcript of the court proceedings, make any necessary corrections, and file them with the court.