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How do we move the divorce on after the counterclaim is filed?

October 4, 2017

Once a counterclaim for divorce has been filed, many spouses may wonder what the next step in the divorce process is and how they should proceed. A divorce is very case-specific, and exactly how it proceeds often depends on the individual spouses and the assets or other factors like child custody that must be decided during the divorce. How amicable the spouses are is also a major factor. There are several options and procedures a spouse will want to consider and discuss with an attorney.

Temporary Orders

Something that should happen very soon after the counterclaim is the filing of temporary orders. These orders work to resolve issues that must be handled immediately and cannot wait for the final resolution of the divorce. Either spouse may request a hearing to decide temporary orders. Two factors typically come up frequently in temporary order hearings: financial matters like bills and mortgages and child custody.

Since divorces may take months or even years to reach final resolution, the temporary order ensures important matters aren’t left unattended for all that time. The responsibilities of each spouse during the divorce process, such as paying bills and handling property, can be set. The spouses may also work out a temporary child custody agreement, and temporary alimony or child support can also be created. These temporary orders are replaced by whatever is entered into the final divorce agreement later.

Automatic Restraining Orders

Another important part of the legal process in divorce is automatic restraining orders. Unlike temporary orders, which are usually up to the spouses, automatic restraining orders may apply as soon as the petition or counterclaim is filed. These orders typically prevent either spouse from taking actions that would disrupt the divorce process. For example, they may not be able to cross state lines with the children or sell off anything considered marital property.

Moving Forward with Mediation

Once the temporary orders have been set, the spouses may decide how they wish to resolve their divorce. If the divorce is unusually amicable, then the couple may be able to reach an agreement very informally using only their attorneys. In most cases, a couple will need to get more formal. The next step up is mediation, and it is often considered the preferred resolution method. Mediation is generally easier emotionally and much cheaper financially than litigation.

Both spouses can and should retrain legal counsel when entering mediation. They then meet with a mediator whose job it is to help them reach a divorce agreement and resolve difficult issues. Importantly, the mediator is not a judge and does not have the power or authority to force an agreement of any kind. This requires that the spouses ultimately agree. The mediator is simply there to help them do that. The final agreement is then submitted to a judge for approval.

Moving Forward with Litigation

The other option is to move forward with litigation. This means bringing the divorce process to the court for the judge to decide. A couple that cannot reach an agreement with mediation must ultimately litigate the divorce. Each couple and his or her attorney will argue their case in court before a judge. The important difference between litigation and mediation is that a judge can and often will impose certain decisions on the couple. The judge’s job is to follow the law and ensure the divorce is equitable or otherwise divided according to state laws. What each spouse may want is secondary to that. By entering litigation, both spouses are surrendering their power to decide the divorce, and they will have to live with the judge’s decision.

The demands set forth in the original divorce petition and counterclaim will play a role in whatever resolution process a couple enters, but petitions and counterclaims are not set in stone. Divorce resolution is often a complex process of give and take before both spouses are satisfied enough to sign the final agreement. Working with an attorney at every stage of the process is important to achieving the best result.

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