The Divorce Process
By: Maury D.
Beaulier
The actual divorce process is controlled
by the participants. Many people do not
realize that not all divorces must end in
contested courtroom proceeding.
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 Motion.
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