Divorce carries many questions with it: Where am I going to live? How am I going to pay my bills? What’s going to happen to the kids? Who is going to get the [insert asset here]? This is a widely-known and much-discussed aspect of divorce in our culture. Less frequently discussed, or even acknowledged, is that divorce carries many assumptions with it as well: that it is a nasty and brutish process; that it is unpredictable and painful, that it must result in at least one (ex-)spouse being “defeated.” The truth is that none of the assumptions often associated with divorce are inevitable, but in order to avoid many of the worst aspects of the divorce process, there are two fundamental truths you must understand: first, that a divorce is a lawsuit just like any other type of dispute taken to court; and second, that a divorce is nothing like any other dispute seen in a courthouse.

1. A divorce is a lawsuit

I can only authoritatively speak for divorce in the state of Texas, but any where in the United States a divorce is filed like a lawsuit in your local courthouse. In Texas, a divorce case is titled “In the Matter of the Marriage of [Spouse] and [Spouse].” If there are minor children, you tack on “and in the Interest of [Child], [Child], and [Child, etc.], Children.” Some states may even title divorce cases as “[Spouse] versus [Spouse]” the same way a lawsuit arising from a breach of contract or a car accident might be titled.

Once a divorce suit is filed, the spouse filing the suit must have the papers served on the other spouse, who is now the opposing party to a lawsuit. This could be done peacefully, by the other spouse simply signing a waiver acknowledging that they received the divorce papers, but it is often done through delivery of the court paperwork by a process server or a uniformed constable or sheriff. Receiving divorce papers from a uniformed (and often armed) official is rarely a way to begin a rational process of negotiation.

Each spouse may have an attorney or not, but once the suit is filed and service is accomplished, the process of discovery begins. Again, the same rules that govern other civil disputes apply here. If one spouse wants to know what the other spouse has in the bank, they must formally request that information through the discovery process. A party can object to a request as being too broad or too burdensome, or for being irrelevant to the issues of the case. Time that could be spent constructively preparing for post-divorce life could be spent fighting over access to information. Spouses can conduct depositions of possible witnesses, including the other spouse, which are rarely a pleasant experience. If custody of the children is an issue in the divorce, the children will inevitably be drawn into the fight during this stage.

If the spouses can’t agree to a settlement, or if they try to mediate the case but are not successful in resolving some or all of the issues, then there will eventually be a trial . This could be a trial before a judge or a jury, with all the trapping of a courtroom adventure: arguments, examinations, cross-examinations, finger-pointing, and so forth. At the end of the trial, there will be a ruling or judgment, with orders covering each of the issues presented to the court. Unless there is some ground for appeal, the now ex-spouses will be bound by the final divorce decree, just like a verdict or ruling in any other trial.

At this point, it is worth asking how the many issues presented in the course of a divorce can be made to fit into the mold of a civil lawsuit. The simple answer is that they cannot, at least not in a way that allows divorcing spouses to easily move on with their lives. This brings us to the second truth about divorce (TO BE CONTINUED…)