and the Divorce Process
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
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
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
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.
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
Temporary support and/or
Where the parties are going to
reside pending the resolution of the case
Protection from harassment and
Injunctions against financial
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.
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
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
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
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 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 refer to a form of
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
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
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
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 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:
financial planners to determine
future economic circumstances
business evaluators to value
real estate appraisers to value
personal property appraiser to
value furnishings and other assets (generally an auctioneer experience d in
vocational evaluator to
determine earning capacity
psychologists to testify to mental
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 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 :
Try to resolve outstanding issues; or
Set issues that will be contested at trial and may include timelines for
exchanging information, exhibits and witness lists.
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
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.
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.
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 Motion.