When divorcing in Connecticut, the ‘how’ and ‘when’ of filing a divorce complaint are dependent upon the method for obtaining the divorce. Whether through mediation, collaborative divorce or litigation, each process requires that a divorce complaint be filed with the court.
The type of divorce process and desired filing date which best suit a client’s situation is determined in the initial meeting. In mediation, the process may be delayed until the client’s spouse can join and contribute to the conversation. Some clients choose to start negotiations first and decide at a subsequent meeting when to file the complaint. Some wish to begin the process immediately.
In Connecticut, all divorce filings experience a “statutory stay” – a 90-day waiting period until a divorce can become finalized. The statutory stay begins not from the date the complaint is signed, but from the “return date.”
A “return date” is the date by which a complaint is signed, passed to and served by a marshal, returned to the lawyer and filed with the court, accompanied by a $350 entry fee.
In a mediation process, the attorney-mediator can prepare the documents but does not file an appearance in the case. Clients sign the paperwork as self-represented parties and appear on record in court as Plaintiff and Defendant.
Initiating a divorce by service of a complaint preserves the “status quo” financially and prohibits either party from selling or otherwise moving assets until further order of the court.
2. Collaborative Process.
A complaint may be served before a couple decides on which divorce process to use. In a situation where a client is unsure as to whether his/her spouse will agree to a collaborative divorce, we may serve divorce papers on the spouse along with a letter:
Dear Mr. or Mrs. Smith:
My name is attorney Regina M. Wexler. I represent your spouse in this divorce action. We are hoping we can proceed through a non-adversarial collaborative divorce process.
Please contact one or more of the attorneys from the enclosed Litchfield County Collaborative Divorce Group brochure. This includes a list of attorneys specially trained, like myself, in the collaborative divorce process. Once you decide on who you feel most comfortable with, have that attorney contact me to begin the collaborative divorce process together.
If there is no hope of initiating a mediation or collaborative divorce process, papers are served and temporary motions filed with the court to commence a litigated divorce.
A litigated divorce can become a collaborative divorce and maintain the same legal representation, but should a collaborative divorce lead to litigation, new counsel must be obtained.
Part of the collaborative divorce agreement, signed by both parties, mandates that neither attorney who participates in the collaborative process can represent the parties if the process breaks down, leading to litigation.
Less than 10% of divorces progress to trial for resolution. All other divorce processes conclude with the parties reaching an agreement through negotiation, which becomes the final judgment of the court.
In each process, the same documentation is filed with the parties appearing in court on that final day to enter into a final divorce decree – it’s the process in between, whether mediation, collaborative or litigation, that differs substantially.
Wouldn’t the process be less painful, and the outcome better for the entire family, if more couples could START with non-adversarial negotiation, either through mediation or a collaborative process?