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Index
The actual
divorce process is controlled by the participants. Many
people do not realize that not all divorces must end in
contested courtroom proceeding. To review some of the
options available to you
CLICK HERE.
Generally,
once you have embarked on a contested divorce process,
the types of proceedings from State to State are
similar, but not identical. You should consult with a
lawyer in your State about the specific process.
The length
of your case may depend on the state and county that
your case is filed in. It often depends on how crowded
the court docket may be and often may take a year or
more. If contested to trial.
JURISDICTION
Before a
divorce is filed, you must determine where the matter
will be heard. Different states have different rules for
bestowing jurisdiction. In many states, a party must
have lived in that state for 180 days prior to filing.
If there are two possible jurisdictions, it may benefit
the party filing to serve the Divorce documents first to
choose jurisdiction in their state. That is the
primary benefit of serving and filing first.. There is
little benefit to serving and filing first other than to
prepare in advance and to choose the jurisdiction.
SUMMONS & PETITION
A divorce
case is usually commenced by serving on the other party
a Summons and Petition for Divorce or Legal Separation.
In some states, a divorce is also called a Dissolution
of Marriage. The only significant difference between a
divorce and a legal separation is that in a legal
separation, the marriage is not dissolve. All other
issues related to custody, parenting time, child support
and property may be resolved just like a divorce.
Service in
most states must be complete by actually personally
serving the other party or a person who resides in their
home who is considered to be of suitable age and
maturity,. In most states, a party may not serve their
own divorce papers.
The Summons
is a generally document announcing that a divorce or
legal separation action is being commenced. In some
states, that document also indicates that from that
point forward neither party may dispose of marital
assets, change insurance coverage or modify any other
significant holdings except for the necessities of life.
The Petition
has two parts. The first part is a statement of facts
which sets out basic facts such as the identities of the
parties, whether they have children and what assets
they may hold. The second part of the Petition seeks
relief such as an award of custody, spousal maintenance
or child support and a division of assets and debts.
The Petition is often tailored to seek the maximum
relief. It is a positioning paper that will often seek
as much relief as the proponent could possibly seek.
ANSWER AND COUNTER
PETITION
The opposing
party has thirty (30) days in most states to submit an
answer to the petition. The Answer is very simply the
opposing parties statement of facts and their request
for relief. Often the service of an Answer is waived.
This is often done to save the parties the cost of an
additional filing fee should the matter be settled.
However, if a waiver or extension is not granted by the
opposing party and an answer is not filed within thirty
(30) Days, the original party ay seek a default. A
default means that the original moving party may request
the relief requested in their petition without
opposition. Late answers are often accepted since
Courts prefer determining cases on their merits rather
than by default.
TEMPORARY HEARINGS
A temporary
hearing may also be called a Pendente Lite Hearing. Such
hearings may be scheduled by either party by filing a
Motion supported by an affidavit. Temporary/Pendente
Lite hearings are designed to resolve issues while the
divorce is pending such as who will have:
-
Temporary custody
-
Temporary support and/or maintenance
-
Where
the parties are going to reside pending the
resolution of the case
-
Protection from harassment and domestic violence
-
Injunctions against financial improprieties
-
Use of
assets
Courts
generally, have a great deal of latitude in resolving
these temporary issues. In most states, temporary
hearings should not affect the final outcome. However,
from a practical perspective, temporary hearings can be
very important since Courts often favor a policy of
maintaining the status quo.
Temporary
orders may be changed if there is a substantial change
in circumstance during the pendency of the divorce to
make the change in the temporary order necessary.
Issues that often arise may be that the debt on an asset
(such as a mortgage) is not being paid requiring
immediate actions such as a change in occupancy of the
homestead or a sale of an asset before the divorce is
final.
MEDIATION
Many courts
require the parties to attempt to mediate their disputes
before the matter is submitted to the Court. One
exception to this rule may be where domestic abuse has
occurred. Mediation may occur between the parties of
with attorneys present.
Mediation
means that the parties visit with a qualified neutral
who will attempt to get them to resolve their
differences. In mediation, the neutral is not an
advocate and sill not provide legal advise.
Most
discussions that occur in mediation are not admissible
in Court under the public policy consideration that
favors a free exchange of information between the
parties to help them resolve their differences.
CO-PARENTING CLASSES
Many states
have adopted a policy that requires parents to attend
co-parenting classes where children are involved. The
goal is to teach parents how to minimize the impact of
children involve in a divorce. In most cases, the
parents need not attend together.
Some states
also require that children of a certain age attend a
class to teach them the skills to deal with divorcing
parents. This is not embraced in all states and is
primarily found in Northern states.
ADVANCE CASE REVIEW
Many states
have a hearing that is called an advance case review or
early case resolution meeting or Case Management
Conference. In such a hearing, the parties meet with
the Judge assigned to the case or a referee to discuss
the issues, or what discovery may be necessary. This is
the parties first chance to resolve the case or portion
of the case.
DISCOVERY
Discovery
refers to the "investigation" phase of the case. It is
primarily dedicated to identifying the contested issues,
a determination of assets, income and debt of the
parties. This exchange of information can be conducted
informally with eth parties agreeing to freely exchange
the information or formally, through the submission of
formal documents that require answers under oath.
Interrogatories.
Interrogatories refer to a form of discovery where
written questions are submitted to the opposing party to
a lawsuit. These questions must be answered in writing
under oath or under penalty of perjury within a
specified time (usually 30 days). Objections may be
made to questions that are overbroad or unlikely to lead
to admissible evidence. Most states limit the number of
interrogatories that may be asked without the court's
permission to keep the questions from being a means of
oppression rather than a source of information.
Document Requests
A request
for production is another part of the discovery
process. Either party may send a request to an opposing
party or witness for relevant documents related to the
proceeding. You may wish to review our list of
Documents that may be relevant to your case. Generally,
documents requests require that the party served
provide any and all documents requested that they have
in their possession within a specified period of time
(usually 30 days). If you do not possess the documents
requested, you do not have to acquire them if it is not
easy to do so. The opposing counsel may acquire those
documents through other remedies such as subpoena or by
having a party sign a Release of Information.
Releases of
Information
The opposing
party may send a release of Information to the other
party seeking to acquire documents from a third party
that is relevant to the case. Ian example of documents
that may be requested include bank statements, medical
records, financial records, work schedules and income
information.
Requests for
Admissions
Either party
may submit to the other a Request for Admission seeking
Admissions on certain facts relevant to the proceeding.
Much like interrogatories and document requests, the
responses must be returned within a specified period of
time and must be made under oath (notarized).
Depositions
A deposition
can be a more expensive form of discovery. It allows a
party to subpoena and depose any individuals who may
have information relevant to the case. This includes
parties and non-parties alike. In a deposition, the
party being deposed appears at the attorney’s office or
a neutral location to answer questions put by the other
side's attorney regarding the facts of the case.
Depositions are under oath with a court reporter present
so that everything that is said is recorded. A
deposition is scheduled to pin a witness down to certain
facts and to discover all possible documents and
witnesses related to a case.
FAILURES PROVIDE
DISCOVERY
The
penalties related to a failure to respond to discovery
or to appear at a deposition may be severe. The
opposing party may file a Motion to Compel discovery
and/or seek sanctions related to that failure. Severe
sanctions may include establishing facts related to a
case. That means that the Court disallows an opposing
party from presenting an evidence or testimony at trial
to contest an issue where discovery was not provided.
Default is the most severe sanction where the Court
allows a party to proceed as if the entire case or any
individual issue is uncontested. The Court may also
award attorney’s fees to the party that submitted the
unanswered discovery.
If you require additional
time to respond to discovery, you should request the
same in writing including a specific timeline when it
can be completed.
EXPERTS
Experts are often employed
to determine certain facts. Those experts may be
jointly agreed upon by the parties, which can save on
the cost of having individual experts testify at trial.
However, where that is not possible, each side may hire
an expert to contest an issue and require their
testimony at trial. Common experts include:
-
custody
evaluators
-
financial planners to determine future economic
circumstances
-
business
evaluators to value businesses
-
real
estate appraisers to value real estate
-
personal
property appraiser to value furnishings and other
assets (generally an auctioneer experience d in home
goods)
-
vocational evaluator to determine earning capacity
psychologists to testify to mental health issues
SETTLEMENT
A divorce or
legal separation case may be resolved at any time the
parties come to an agreement on the issues. In such
cases, the parties would sign a Marital Settlement
Agreement or some other form of stipulation resolving
their issues. This can occur right up to the point of
trial.
SETTLEMENT
CONFERENCE/PRETRIAL
Settlement
or pretrial conferences are schedule by the Court. In
such conferences, the Court may require each party to
submit a pretrial statement of the case and issues. In
such hearings, the Judge will meet with the lawyers
and/or parties to discuss the issues and to make
settlement recommendations. This is a gentle form of
arm twisting to :
1.
Try to resolve outstanding issues; or
2.
Set issues that will be contested at trial and
may include timelines for exchanging information,
exhibits and witness lists.
TRIAL
If you are
unable to settle your case with your spouse, it will go
to trial. Some states have a trial by jury. Other
states have a trail to Judge. At trial you each tell
your story to the judge. It is told through your
testimony, the testimony of other witnesses, and
documents called exhibits. st trial, the moving
party (usually called the petitioner or plaintiff)
presents their case first. The call their witnesses who
are subject to cross-examination by the opposing party.
When the plaintiff or petitioner rests their case, the
Respondent or Defendant presents their own case with
witnesses and evidence, each subject to cross
examination by the opposing party.
Appeals
After a
divorce, either party has a right to an appeal if they
disagree with e Judge’s ruling. The timelines for appeal
are severely limited. As a result, you should consult
with a lawyer in your state regarding those timelines.
Modification
Whether the
issues in your divorce are settled by you and your
spouse or are decided by a judge, some things in your
judgment can be modified (changed) by a judge after a
hearing. Usually, child support, alimony, child custody,
and child visitation can be modified, but only if one of
you can show that there has been a change in
circumstances.
Enforcement
If you or
your spouse disobeys an order that the court makes in
your divorce judgment, you may file a Motion to compel
compliance. Such motions are generally for contempt and
require the service of an Order to Show Cause and a |
