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What are the steps for filing for divorce?

May 17, 2023 by Brooke, the Divorce Coach Ask Brooke 0 comments

Everything I knew about divorce I learned on bad TV! That’s mostly true. I also knew about divorce having grown up in a home with divorced parents. I lived with my mom in the school year and my adopted dad in the summer. Divorce is so much more complicated than that, especially if you are married to someone with a high conflict personality.

After I asked for my divorce, I walked into an attorney’s office thinking that they would tell me what to do. Instead, they waited for me to tell them. But I knew NOTHING about how the system worked. I was relying on the attorney to tell me how to proceed. And honestly, I thought I would share the timeline of abuse, manipulation, and threats, and he would rush into action to protect me and the kids.

Instead, he told me that I needed to “give X a chance to be a dad.” What?! I had given him a chance to be a dad. He sucked at it. And then he had threatened to kill me. Surely, we weren’t going to send the kids off unsupervised with this unstable person.

But that’s what happened. That’s what the courts told me was normal. That is the system we have created.

So for those new to divorce or considering separation and divorce, here is a little primer on how the process goes. Disclaimer: I am not a lawyer. I am a protective mom who has walked through the process and helps other protective moms. Questions about the specifics of your legal case should be run through your attorney.

Steps for filing a divorceWhat happens after I say I want a divorce?

After you tell your partner that you want a divorce (or after they tell you they want a divorce), one party typically moves out of the marital home. This has changed some in the last several years with both parties continuing to live together. In high conflict cases where there is alleged abuse, this is probably not the best option for your mental health, but I understand why some people do this. If you have filed an order of protection, the terms of the separation and contact will be a little different and will be addressed in another post.

There are several ways to go through the divorce:

  1. With an attorney – This is a pretty standard route. One or both parties hire an attorney who are able to file motions and requests for orders on your behalf. You can also have an attorney draft an agreement that you both end up signing and filing with the court (this is what I did, but X is unique in not fighting for custody initially).
  2. Through a collaborative divorce – If you are on good terms with your partner, there are options for collaborative divorces where you work together to create an agreement. This is not typically possible with the clients I work with.
  3. Mediation – You can also hire a mediator to help you come to an agreement that you file with the court. As with collaborative divorces, this is difficult for clients who have personality disordered or abusive spouses.

Separation Agreements

In some states (Virginia for example), parties are required to be separated for a year prior to filing for divorce (yay antiquated laws that force moral judgement and marriage on people). If you have an abusive partner, this year can be full of love bombing to try to get you to reconsider. It is important for you to educate yourself on controlling behaviors and the abuse cycle in order to protect yourself during this time!

Depending on how your partner views this process as well as their desire to create chaos and conflict, even getting a separation agreement can be challenging. But, if you can get one, it can lay out a plan for temporary custody while the divorce is ongoing as well as define living arrangements, financial obligations, and debt. Anything that may be addressed in the final court order for the divorce can basically be addressed in the separation agreement (and then later, the parties can use that agreement as the basis for the divorce, again depending on the parties’ states of mind).

The legal divorce process

So, you’ve decided to divorce. One of you has moved out. You’ve consulted an attorney. Now what?

Filing for Divorce

Your attorney will draft a complaint essentially that lays out the facts that are relevant for the divorce. Things that might be included in the filing:

  • Finances
  • Current living situation
  • Length of marriage
  • Names, DOB of children
  • Assets, including homes
  • Debts, including cars and credit cards
  • Date of separation
  • Circumstances around the reason for the separation depending on how the state views divorce and whether it’s a no-fault state
  • Allegations of abuse

The complaint will also ask for relief. This is where you need to be specific with your attorney about what you want. Even if it is a default 50/50 state, you can ask for something else and tell your attorney to fight for that arrangement. No, you might not get it, but you are the client and can tell your attorney what matters to you. Relief might include:

  • Custodial time
  • Holiday visits
  • Legal custody (please ask for tie breaking decision authority on educational and medical decisions)
  • School placement
  • Health insurance
  • Debt responsibility
  • Asset allocation
  • Alimony
  • Child Support

If there is no separation agreement and no stipulated agreement – an agreement both parties agree to and file with the court, then one party can file for temporary custody orders. If there is a belief that the child(ren) are at risk, you can file for an emergency custody hearing, but you must be able to show that there is the possibility of harm. If you believe your children are in harm but your attorney is shrugging, remember that you are the client and can tell your attorney to file an emergency motion. Again, it might get denied, but it won’t be you sending your child into harm’s way. The court can’t later blame you for the visit (not that the court will take responsibility either).

Temporary custody orders are specific to custody and set out the terms of custody and visitation while other matters and the divorce are being decided. You will have a hearing on the motion that is filed (that will again contain facts supporting the desired relief and the custody schedule you believe is best for your children). This hearing will be much shorter than the eventual divorce, but you will likely still present some evidence about why you are asking for less than 50/50. Many times, these requests for temporary orders also include an affidavit, declaration, or certification. My affidavits often were a couple of pages long and read something like:

  1. I am the mother of CHILD 1 and CHILD 2.
  2. Our current custody schedule provides for once a month overnight visits to be scheduled by X with seven days notice.
  3. Since our separation on DATE, X had not taken any of his provided overnights.
  4. On DATE, a year later, X asked for his first overnight.
  5. At the exchange for that overnight, CHILD 2 expressed concern over the visit and then vomited in the parking lot.

For this example, I would have asked for overnights to be suspended until a final hearing. In the affidavit, you only want to include facts, not emotions.

Mediation

In most cases, a judge will order both parties to mediation. They do not want to hear these cases and believe that everyone is sane and healthy and should be able to come to an agreement. Obviously, we know that isn’t true. But, they will send you off to a mediator anyway to try to get you to some agreement. Usually, this means that the victim of abuse gives in to the demands of an abuser or ends in mediation breakdown. But, you *can* negotiate with a narcissist, no matter what anyone tells you.

Scheduling and Status Hearings

After you have filed for divorce, the other party will have a chance to answer that claim. Then the judge will hold a scheduling conference with both attorneys (or representatives from both sides). They will schedule the final hearing as well as deadlines and status hearings along the way. The status hearing can be an update after mediation or can be closer to the actual hearing once the attorneys have submitted their theories of the case. A lot of these hearings are again intended to get you to settle.

Discovery and Interrogatories

You will be asked to provide evidence in the form of discovery for your claims in the complaint that is filed. Evidence can be text, photos, emails, therapy notes, report cards, medical notes, audio files etc. This has to be provided to the other party. They will also send you a list of items that they want you to provide, which can include emails, texts to other people (including your friends and parents), social media posts, etc.  You will also help your attorney come up with a list of items to request from your ex that you want to look through that you think will help build your case. Remember, anything in writing that isn’t communication with your attorney can be discoverable. You will also send a list of questions – and be sent a list of questions – to answer for the other side.

Depositions

Depositions are often scheduled as a way to get additional information from the other side prior to court. During a deposition, you are sworn in just like you would be in court. Transcripts from the depositions can then be entered into evidence during the hearing.

The hearing

You will finally have a hearing after what feels like 17,000 years. This is when you will present your evidence. You will likely be called to testify as will your ex. You will be cross examined by the other side, who will likely not treat you nicely. You would also call any witnesses, forensic accountants, forensic psychologists, or expert witnesses to bolster your case.

Final Order/Divorce Decree

After your hearing, the judge will likely issue a document called “Facts and Findings” where they assert what is true about your case. This document can be enraging if you know that your ex lied, and your judge writes it as truth in the facts and findings, which is an official court record. My judge called me controlling for asking X to adhere to the court order and to use bug spray when he is very allergic to mosquitoes. It’s been years, and I still won’t read the entire document!

The final order will spell out the details of your divorce, but more specifically, the details regarding custody. This will become your guiding document and the rules that you live under for better or worse until the kid ages out of the system or you file for a modification.

 

 

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In enmeshed family systems, individual autonomy is In enmeshed family systems, individual autonomy is often relinquished and replaced by the wants, needs, feelings of the disordered person. The enmeshed person(s) often take on the emotions of the other and identify with the wants and needs of the individual to the exclusion of their own. 

It's important to understand enmeshment not only in the context of your relationship with the disordered parent but also your children's relationship with them. (This concept is also often used against protective parents so important to ensure that you are demonstrating appropriate boundaries with your children when third parties are involved.)
In a healthy relationship, people overlap in their In a healthy relationship, people overlap in their shared interests and needs but have their own space to develop as autonomous people. We have the freedom to tell someone no. They may not like it or wish that we would have said yes, but they do not employ manipulative tactics to turn the no into a yes. They respect us as individuals rather than an extension or mirror of them. 

While I would argue this isn't really possible even when co-parenting with a narcissist, this is a helpful visual to try to create needed separation after being enmeshed. You are trying to get to a point where there is little overlap between you and them - but it also means letting go of what they do. It is a really difficult mental shift when you are so accustomed to the chaos and drama of the narcissist. But it is work worth doing.
One of the most powerful visuals my marriage couns One of the most powerful visuals my marriage counselor provided me was this one. In a healthy relationship, partners are like a typical venn diagram where the middle overlaps to varying degrees based on personalities and preferences. In a narcissistic relationship, you become consumed by the narcissist. You may feel like you have autonomy - but just try saying "no" and see how much you actually have! The work once you divorce the narcissist is disentangling yourself from their life and the chaos. It is more than just physical space!
Joan Meier's research into family court is among t Joan Meier's research into family court is among the best in the field. She was in the One in Ten podcast in May 2023 discussing her research, which is worth the listen. 

Of note is this statistic. This is before alienation is even accounted for. The courts - the country - just do not believe women and children. When we think they will listen and protect us, we are already fighting an uphill battle. (And remember your attorney probably holds some of these beliefs as well.) You have to fully accept the reality of family court right now if you are fighting for custody. It's the only way to fight strategically.
Narcissists love to ruin holidays. It's their spec Narcissists love to ruin holidays. It's their special talent. (Want to know how common it is? There are whole Reddit threads on narcissists ruining holidays!) But if you can predict the chaos, you can plan for it. It will not ruin your holiday because you can laugh at how predictable it is.
He might be a #narcissist if... #familycourt He might be a #narcissist if... #familycourt
Attorneys are notoriously bad at guiding clients t Attorneys are notoriously bad at guiding clients through their divorces. They leave out things all the time, under the belief that most people will be cordial and work it out (even though they encounter high conflict cases all the time). Make sure you do your own research on things to include in your parenting plan. Ask others who have been through it what they wish they had included. Think about your kids' particular interests and schedules and make sure there is a plan for them. And, if the kids are young, make a plan for when they are in school. It will happen sooner than you think and what works for a 2 year old, doesn't work for a 12 year old. Free sample parenting plans are available on my website.
I divorced my disordered ex husband when my kids w I divorced my disordered ex husband when my kids were 4 and 7. I spent 10 years in my marriage unaware of the reality of who he was. And when I woke up to reality, it scared me. I had children with this person. My kids have this gene. It scared me. 

The summer after my separation, I created a 100 acts of kindness challenge for my oldest son (who worried me most) after a conversation with Tina Swithin. My son very much wanted a reptile, and I told him that we would get one after he completed those 100 acts. And all through the summer he would get a sticker on the acts of kindness sheet we created as he completed them. He became very helpful at the airport when we were flying, trying to carry the suitcases. He opened doors for people. He gave them compliments. Is it enough to make it intrinsic? Maybe not. But it was a start. It reminded me that this was a skill I needed to teach and reinforce. And having a plan made me less afraid of the possibility of my children becoming narcissists themselves. #worldkindnessday
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