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The Divorce Process
Related Pages
The following information is a general outline of the divorce
process and the general sequence of events in a divorce action.
This information is intended to answer general questions and
concerns. It does not, however, contain legal advice or answers
for the issues in each individual divorce case.
Beginning the Action
The divorce (or legal separation) action is begun with the filing
and service of the Summons and Petition for Divorce in your
county of residence. If you are the petitioner, your spouse
will need to be served with these divorce or legal separation
pleadings. This may be accomplished by (1) your spouse voluntarily
receiving and signing for the papers, in which case he or she
would make arrangements to do so in our office or at the office
of his or her attorney, or (2) he or she may be served by a
process server. It is also an option to file a Joint Petition
for Divorce that both you and your spouse sign. If you are the
respondent (i.e., you have been served with papers), you will
need to answer the Petition for Divorce. The answer is a document
called the Response and will state your position as to each
of the claims made in the petition. You may also take this opportunity
to initiate your own claim for divorce, in which case a Counterclaim
will be filed in addition to the Response.
Optional Temporary Orders
If it is necessary to have the court set the temporary divorce
terms and conditions regarding children or finances the parties
are to follow during the pendency of the divorce action, then
an Order to Show Cause for Temporary Order and an Affidavit
for Temporary Order will be filed concurrently with the Summons
and Petition, or shortly thereafter. The Order to Show Cause
for Temporary Order contains the date of the hearing and the
request for the terms to be set. This first hearing is heard
by a Family Court Commissioner. If you or your spouse disagree
with the orders issued by the Family Court Commissioner, either
party may request a review by the judge assigned to your divorce
or legal separation case.
Financial Statement, Negotiations, and Discovery
Prior to the first hearing you will need a completed financial
statement, copies of your wage statements for the previous eight
weeks and federal and state tax returns for the previous two
years. The draft financial statement form should be forwarded
to your attorney as soon as possible after the filing of the
divorce or legal separation action, but no later than one week
before the first hearing to allow time for verification, corrections,
and typing. Whether or not there is a first hearing in your
case, the financial disclosure statement must be prepared within
90 days of the start of the action.
If you have children and there is no agreement between you and your spouse as to their custody and placement, then you will be referred by the court to family court counseling services for mediation of the contested issues. If mediation does not result in an agreement, it will also be necessary to obtain a custody study (not available in all counties) and petition the court for the appointment of a Guardian ad Litem (GAL), an attorney appointed to represent the interests of your children. Most courts require that each party immediately forward a deposit to the GAL and that subsequent fees be split by the parties. The GAL will conduct an investigation and make recommendations as to what would be best for the children. The GAL participates as any other attorney at all hearings. The GAL or either parent may also request psychological evaluations.
It is necessary to gather and verify information concerning the nature and extent of all the marital assets and debts. To that end, your attorney will prepare several releases for your signature which will allow your attorney to obtain financial information with regard to your savings and checking accounts, stocks, bonds, insurance policies, as well as, the value of any pension, profit sharing or other retirement funds or any other assets or debts. If you provide recent statements for this information, releases are generally not necessary. Your attorney will also request this same information from your spouse. When a complete marital asset list is compiled, your attorney will meet with you to discuss proposals for the division of the marital estate.
Although the exchange of marital asset information is generally cooperative, if your spouse does not voluntarily disclose this information, this information may need to be obtained through a formal discovery process. This would include the possibility of subpoenas, a deposition of your spouse or other witnesses (sworn testimony before a court reporter), interrogatories (questions submitted in writing to be answered in writing, under oath), or a request for production of documents such as bank statements, canceled checks, etc. Formal discovery is more time-consuming and costly than voluntary cooperation.
Four-way settlement meetings are very useful to work through
possible settlement options during your divorce or legal separation
and to discuss temporary financial arrangements or final division
of assets, debts and issues surrounding the care and placement
of children. Mediation for your divorce, or proceeding with
cooperative attorneys or through the collaborative divorce process
are alternative ways to proceed through your divorce or legal
separation action. top
Pre-Trial and Trial
A pretrial hearing will be scheduled with the judge assigned
to your case after 120 days has lapsed since the respondent
was served with the Summons and Petition. If all issues in your
case have been settled, financial statements have been filed
with the court by both parties and a marital settlement agreement
has been signed by both parties, the pretrial hearing date may
be used as a default date, i.e., a final divorce hearing. If
there are still issues in dispute, the pretrial hearing will
consist of the attorneys meeting with the judge to apprise the
judge of the status of the case, obtain orders for any GAL or
experts, and to schedule a trial date. Your divorce or legal
separation case will then be treated as a contested matter and
proceed toward trial. If an agreement is reached and signed,
a prompt final hearing date can generally be scheduled to finalize
your divorce.
Less than 10% of divorce cases actually go to trial - with a day or more hearing with the judge assigned to your case, with exhibits presented and testimony taken. We strive to work towards a fair, equitable settlement that both parties agree to. The final decision on all settlement terms, however, is up to you. Though we provide legal input and advice, this is your divorce. You will not be granted a divorce until all issues have been resolved and a marital settlement agreement is signed or until the judge renders a decision at the end of a trial. Throughout your case, we will strongly advocate your position and vigorously defend your interests. However, you should be aware that a trial is an emotionally rendering (such that you/your family may never fully recover from) and a very expensive experience. top
Enforcing Orders
If either you or your spouse fail to abide by any court order
either during the divorce or after, including temporary orders
made by the Family Court Commissioner (for example, not making
a mortgage payment as ordered or not allowing placement with
the children to occur as ordered), the court may be asked to
hold the offending spouse "in contempt" and to impose appropriate
sanctions (punishment). You should inform your attorney immediately
if your spouse does not follow through on any orders of the
court; however, generally, enforcement of the orders after the
divorce or legal separation is concluded, is typically a new
action and requires a new agreement for services with your attorney.
Alternatives
Mediation or collaborative divorce and are two non-court options
that take the place of the traditional litigation process. Mediation
involves the use of a neutral third-party specially trained
to assist parties in reaching agreements on property and child
custody. In a collaborative divorce the parties are fully represented
by attorneys, but both parties and their attorneys commit to
reaching an agreement through four-way meetings rather than
contested hearings. For more information see our sections on
Mediation
or Collaborative Divorce. top
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