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Starting the Divorce Action

To get the divorce process rolling, someone will need to file. The spouse who starts the legal proceedings is called the plaintiff or petitioner, and the one who responds is called the defendant, or respondent.

If you have hired a full-service attorney, he or she will decide when to start legal divorce proceedings, usually based on a number of different factors. Maybe you need some kind of immediate relief, such as support, and your spouse has refused to provide it. If you are fully represented, your lawyer must go to court and ask a judge to order your spouse to pay. The only way the lawyer can go to court is to first start a divorce action, and therefore you would be the plaintiff, or petitioner. If you are handling your case pro se, or if you have hired a lawyer to advise but not represent you, you will initiate the action yourself.

Perhaps you've decided to start your divorce action a few months before you get that bonus, thus excluding the money from marital property. Depending on the laws of your state, such strategy may or may not be completely effective. Even if a bonus is paid after the date of separation, it might be deemed joint property because it was earned during the marriage. If you have hired a full-service attorney, he will know just what you should do. If you are filing on your own, this is one of those areas where legal advice should be sought.

Whatever the details, if you and your spouse have worked out a mutually agreeable deal, when it's time to file, the lawyer (or individual) who has been doing the paperwork simply files. Either spouse can file first.

In short, who becomes plaintiff and who becomes defendant depends on a number of factors. Although it might not sit right with you to be the defendant or respondent, gone are the days when such labels mattered much.

Working Out a Settlement Agreement

Whether you call it a Separation Agreement or Divorce Settlement, in the best of all possible worlds, you and your spouse would sit down like two civilized adults and pound out a fair deal between yourselves.

In one difficult case, a 60-year-old man was divorcing his second wife. (His first wife died after 30 years of marriage.) Discussions between the lawyers went nowhere, and the parties' grown children from their first marriages weren't helping with their endless “suggestions.” Finally, the husband met his wife for breakfast at a diner one Sunday morning. Monday, he came to see his lawyer with the details of a settlement scribbled on a napkin. The lawyers got busy writing up the settlement agreement.

The moral of the story? You and your spouse should do whatever you can to settle the case. You'll save legal fees and headaches. There is only one caveat. Do not sign anything until you speak to a lawyer.

Indeed, we conclude this chapter by stating the obvious. Always check with an attorney before signing any agreement or taking any major steps such as moving out, withdrawing money from joint accounts, stopping credit cards, hiring a private investigator, or trying to tape conversations.

Excerpted from The Complete Idiot's Guide to Surviving Divorce © 2002 by BookEnds, LLC. All rights reserved including the right of reproduction in whole or in part in any form. Used by arrangement with Alpha Books, a member of Penguin Group (USA) Inc.

To order this book visit the Idiot's Guide web site or call 1-800-253-6476.


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