If you are at this website and reading this information, it means you are dealing with some difficult issues. First, we know how tough a divorce can be. Some say getting divorce is more difficult than dealing with the loss of a loved one. The emotional and financial consequences are severe and seem to last much longer than anyone anticipates. No one gets what it is like to go through this process, until they are actually in it. There is no way to make it hurt less, but there are ways to make the process easier and better. In part, a good attorney can not only be a strong advocate in the courtroom, but can also offer advice on how to resolve issues and how to deal with some of the unexpected events of divorce. Below is a brief synopsis of the divorce process. If you want greater detail, please review the divorce and custody handbook that is found under forms on this website.
Beginning the process:
Divorce begins with the filing of a Complaint for Divorce, along with a Summons and a Verified Statement (if children involved) and Record of Divorce. Some of those forms are found on our website for you to review. One party chooses to start the process and is called the Plaintiff. That person always remains the Plaintiff, regardless of who files what, at a later time. The Complaint for Divorce is very standard. It states the requirements in the statute and rarely states anything about fault of another party. It will usually request spousal support, even if that is not an issue (so that it can be argued later, if necessary) and, if children involved, will generally request full custody of children. A different agreement can be reached at a later time. The Summons merely states the name and address of the parties and any attorneys. It provides the date the Complaint was filed and a place for service to the Defendant. If children involved, the Verified Statement needs to be attached to the Complaint for Divorce and provides the Friend of the Court information about the children and the parties’ employment and insurance status. The Record of Divorce contains all the parties’ identifying information (social security numbers, employment, etc.). This is filed with the State once the Divorce is finalized.
The Complaint is served on the other spouse (also referred to as the Defendant or opposing party). It can be served by a process server or someone other than the filing party or sent by certified mail. The Plaintiff can also take the documents to the Defendant and have them sign an Acknowledgement or the Defendant can come to the Attorney’s office and sign for it.
The opposing party is then required to file an Answer within 21 days of receiving the Complaint for Divorce. If the opposing party does not file an answer, then he/she can be defaulted and the divorce proceeds without that person. Generally, the opposing party will hire an attorney within the time and the process will move forward with two attorneys involved.
Discovery is the process of finding out information. It involves getting information about employment, income, retirement benefits and health care benefits. It is also a time to learn about witnesses, bank information, debts and information about real estate. Often clients know much of this information, but it is not unusual for a client to know part, but not all. In some circumstances, clients do not have access to any of the information. During discovery, there may be questions asked by each party in writing, that have to be answered under oath. These are called Interrogatories. There may also be depositions, where parties and witnesses are actually put under oath and answer questions verbally, asked by attorneys. Discovery can include asking third parties questions about what they know about each spouse, finances or even information about parenting skills.
The discovery process can take very little time or can take months. It really depends on how much information there is to gather and how much information is easily available.
Mediation can and should (if done correctly), keep most cases out of the courtroom. Mediation occurs when all the parties, their attorneys (if applicable) and a trained family law mediator go through all of the issues that apply in the divorce, step by step. The mediator does not decide the case, but helps the parties to identify issues, options and explains the process. The mediator is trained to help people reach resolution on all the issues and allows each party a voice in the mediation process. The mediator is a very useful tool in keeping parties from having all out litigation, which is expensive and time consuming. Mediation allows the parties to handle all the important issues at once, without court delays or time limitations. Any agreements that are reached during mediation can be reduced to a court order or Judgment of Divorce.
Mediation is now becoming a court ordered option. It is often ordered before the parties are allowed to get a trial date, to see if resolution can come in a different format. Mediation is highly encouraged. Parties should always talk to their attorneys about mediation and when it should occur. Mediation can occur before the filing of the divorce or after, depending on the decision of the parties and attorneys, if involved. Shon Cook is a trained family law mediator and uses those skills in divorce cases, as well as mediates for family law cases privately and for the Court.
Friend of the Court
The Friend of the Court is the arm of the Court that handles custody, child support and parenting time. The Friend of the Court immediately schedules their own mediation, known as a Conciliation Conference, within a few weeks of the filing of the divorce. This may be scheduled and the parties notified even before the opposing party is served the Complaint. The Friend of the Court meets with the parties, without attorneys and explains some of the Court process. The Friend of the Court mediator will try to help the parties to reach an agreement about Custody, Parenting Time and Support. If an agreement can be reached, both parties can sign the agreement, and that will become the Order of the Court. If one or both of the parties do not agree, then the mediator will issue a recommendation. The Judge will sign the recommendation into an Order. Either party then has 14 days to object to the recommendation and have a hearing to prove to the Judge why the recommendation is not correct. Sometimes the Court will change the recommendation or modify it, and sometimes the Court will just wait until the time of trial to adjust what was in the recommendation.
The parties often will have settlement conferences with each other with their attorneys present. The conferences can be used to settle temporary issues or even settle the entire case. Often a settlement demand has been sent by one of the attorneys and this is used as a basis to move forward into settlement. While it is often difficult to have rational conversations with each other, spouses often find this method can help move a case to resolution. Good attorneys use this time to explore resolving the case, and not poking barbs at the other person or creating more conflict.
Often Judges conduct a pre-trial conference. This is a date set by the Court to talk with the attorneys (or the parties if they are not represented), about the status of the case. The Court will then set timelines when witnesses have to be disclosed, exhibits exchanged and arguments about the law and fact have to be submitted. The Court will also determine the time needed for trial and set the trial date.
Trial is the time that the Court sets aside to actually hear the issues in the case. A Preliminary Trial is scheduled by the Judge to determine what issues are resolved or not resolved. This is scheduled for 15 minutes. If possible, attorneys will try to determine if the Preliminary trial is necessary. If the parties have not resolved any issues, the attorneys will call the Court and request that the trial be scheduled for a certain amount of time and cancel the Preliminary trial. At the time of trial, the parties will have witnesses testify, exhibits will be shown to the Court and the attorneys/parties will make arguments about what they want and why. Trial can take as little as an hour, all the way to multiple days, spread over months, depending on the schedule of the Court. Trial is rather time consuming and expensive. The Court will only listen to what is legally allowable. Many smaller issues do not get heard and often information is not admissible that seems very important. After hearing all the testimony and viewing all the evidence, the Judge will then make a decision about all the issues. The Judge will then issue a legal opinion that tells everyone what he wants to do. That Opinion is then put into a Judgment of Divorce that is entered with the Court and ends the case.
It is not unusual for everyone to prepare for a trial and for settlement to be reached on the day of trial or shortly before. Often, it is the reality that this is the actual date that drives people to resolve the case. A settlement simply means that the parties reach agreement on all issues in the divorce and that the case is resolved based on that agreement. If a settlement is reached, the settlement is reduced to writing and the parties then sign the agreement, which becomes an Order. In a divorce, the actual Order is a Judgment of Divorce. Often, parties will reach agreement on some issues and not others. When that happens, the Court hears the issues that are not resolved and decides only those issues.
Judgment of Divorce
The last order in a divorce is the actual Judgment. The Judgment covers all issues of the parties, which include financial issues, spousal support, child support, custody, parenting time, real estate, debts and other personal property. The parties must review and sign the Judgment. If there are children in the divorce, the Friend of the Court must also sign the document. The last person to sign the Judgment before it becomes a final order is the Judge.
Every divorce is different. Many people will try to give advice on how your divorce should go. However, the dynamics changed based on the lawyers involved, the Judge involved, the facts and the parties. While there are some hard and fast rules, most things in family law, just depend. There is nothing usual.
As you proceed through divorce, do your best to take a deep breath and try to take a day at a time. Things that seem like they should have been resolved a long time ago will seem to linger. Decisions will seem harder to make than usual. You will feel overwhelmed, frustrated and still very emotional. Try to remember, you are not the only one feeling these emotions. It is normal and simply means that you are trying the best you can. Hiring the right attorney can really make the process better and make it easier for you to breathe and move forward.