LEGAL EASE
by Shane Givens and Summer McWhorter

April 25, 2013

Divorce and separation


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We often have clients come in our office and ask questions about divorce and legal separation and the difference between the two.

We generally place domestic relations cases involving married couples in one of three categories: contested divorce, uncontested divorce, or legal separation.

A contested divorce is a divorce action where one of the parties files a complaint for divorce and the other party has 30 days to respond with an answer once they have been served with the complaint. These cases generally are set for a temporary hearing where immediate issues are heard by the court. Any order issued by the court after the temporary hearing generally stays in effect until the final hearing.

After the temporary order is issued, the court will often set the case for final hearing at some point in the future. Usually, the court gives the parties enough time to conduct discovery if it is needed. This can include depositions, requests for production, interrogatories, and requests for admissions. Many divorces, however, do not require long periods of discovery and can be set sooner, depending upon the court's calendar and schedule. Many people forget that the courts are busy and often have a backlog of cases that they are trying to set and hear.

An uncontested divorce can occur when both parties have already worked out an agreement for their particular issues. These issues may include property settlement, child custody, child support, payment of debts, etc. In many cases, both parties will actually come to the attorney's office together. One attorney can prepare the documents, but it is never a bad idea for another attorney to advise the defendant of his or her choices.

The attorney generally prepares all the paperwork for the divorce. Everything from the complaint to the divorce agreement is prepared before anything is filed. Once all the documents are prepared, the parties sign where required and the attorney files all of the documents at one time. After all of the documents are properly filed, there must be a 30-day waiting period before a judge can sign the divorce decree. This gives the parties an opportunity to let the court know should they decide to change their minds about the divorce or if some issue arises before the final decree is signed.

A legal separation involves basically the same process as an uncontested divorce. Both parties must be in agreement and be willing to sign the documents. The main difference between a divorce and separation is that you do not get a divorce at the end of a separation. Legally, the parties are still married and, therefore, cannot marry anyone else. This allows for property and debt distribution.

If you have questions about divorce or legal separation you should speak with an attorney who can advise you based on the specifics of your individual case and needs.

This column is intended for general information purposes only. The answers to most legal problems rely on specific facts of a particular situation; therefore, it is very important to see a lawyer when these situations arise. Please e-mail questions for future columns to givenslaw@tds.net.