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

Posted By User, Uncategorized On 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.

Can he legally obtain my cell phone records and bills?

Going through a divorce is a very stressful and emotional situation. However, things can be even more heated if there is the belief that one of the parties committed infidelity. Generally, the majority of people today use cell phones as their primary form of communication. While this is a great convenience, it can also cause a lot of problems for a person when they are seeking information during a divorce that would otherwise be considered “private.” It’s important to know the details of whether a former spouse can legally obtain your cell phone and cell phone bills during a divorce.

Subpoenas in a Divorce Case
If one of the parties has reason to believe that their spouse cheated during the marriage, he or she can obtain the cell phone records and bills of the other person during the course of divorce proceedings. For this to be legal, however, a divorce must have already been filed with the court or you cannot get a subpoena for the records. If no divorce has been filed and the couple is still together, neither party is legally obligated to turn over such information. A subpoena during a divorce case specifically states everything that must be turned over as well as requests for the party to testify, which is typical in divorce cases.

What Takes Place During the Discovery Phase?
In some cases, a subpoena may not actually be necessary in order to obtain the spouse’s cell phone records during a divorce. In Long Island or anywhere else in the state of New York, the individual’s divorce attorney can request the records during the discovery phase of a divorce case. That is the period where the lawyer requests evidence as part of the proceedings. Generally, there are laws surrounding the discovery phase that is usually done in place of serving a subpoena or filing.

Other Ways of Acquiring Information
The two traditional means by which a divorce attorney can acquire cell phone records and cell phone bills from their client’s spouse are through discovery or by obtaining a subpoena. However, there are additional methods to which they can turn as well. The spouse can also just directly gain access to the phone to find information. He or she could make copies of text messages if the phone is left unattended while both parties are still living in the same home. Another way for the spouse to obtain the messages is to make copies if the cell phone bills are not exclusively in the other person’s name. However, it’s important to note that information acquired in this manner is usually inadmissible during the divorce case.

How are Cell Phone Records Used in a Divorce?
Typically, cell phone records and bills that are obtained during the course of a bitter divorce can be used in more than one way. First, they can be used to prove that there was infidelity during the marriage. Cell phone call records from the wireless carrier can be used to prove the same. All the information can be used during a trial to prove specific things. Additionally, it can be used as leverage during settlement negotiations.

Other Notable Vulnerable Areas
Because everything is connected these days, people to think about more than just their cell phones. Information found in emails and social media are other focal points for a former spouse to use against the individual. Such records can also be used after being obtained through a subpoena in a divorce case.

Protecting Yourself
A person cannot protect himself or herself against a subpoena that is legally served to obtain the cell phone records. Keeping the cell phone secure at all times and changing passwords on email and social media accounts is the only way to be protected. It means the former spouse would have to file a subpoena to be able to access the information.

If you are going through a divorce in Long Island, it’s important to hire a skilled New York attorney. Contact a divorce lawyer at your earliest convenience.