Divorce and Family Law
Procedural Steps
Legal issues involved in divorce can include child custody disputes, child support, domestic violence, and other family law matters. Few legal areas are as emotionally charged as family law, primarily for the litigants, but also for the lawyers and judges involved in the cases and even the public at large.
Despite the changes already made by courts and legislatures, family law remains a contentious and ever-changing area of law, which will continue to evolve as families and society evolve.
DIVORCE PROCEDURE
As attorneys who practice family law every day, we want you to feel more comfortable with the process involved in obtaining a divorce. We have created a short outline of the divorce procedure for you to keep and reference as you progress through your divorce.
There are basically four steps involved in a divorce.
The First Step – Filing For Divorce
The first step in preparing for a divorce is the processing of the paperwork. This generally includes preparation of the following pleadings:
1. Summons
2. Petition
3. Order to Show Cause pleadings for the purpose of requesting relief at the first hearing
4. Temporary Restraining Orders
5. Declarations
6. Income and Expense Declaration
7. Response, if you are the party served with divorce papers
8. Responsive Declaration to Order to Show Cause, if appropriate
If you are the party filing for divorce, the papers will be filed and then served on the other party. The purpose of service is to start “the clock ticking.” The person served has thirty (30) days to respond if they choose to do so. The earliest that the court can grant a Judgment of Dissolution is six (6) months from the date of service. The purpose of the six month waiting period is to encourage reconciliation between the spouses, and if in fact a reconciliation occurs during this period, the proceeding can be dismissed.
The Second Step
After the pleadings have been drafted and served, the next step is the Order to Show Cause, the initial hearing. Generally, the following issues are addressed:
1. Spousal Support
2. Child Support
3. Child custody and visitation
4. Restraining Orders
5. Use of the residence
6. Joinder of any pension plans
7. Requests for attorney fees and costs
8. Any other miscellaneous relief necessary for the stability of the parties and children.
The first hearing will usually occur within twenty-five (25) days of the date the pleadings are filed with the court, absent any continuances. At this hearing, the attorneys (or yourself and your spouse if you are not represented) will argue the case, and the court generally will not take testimony at that time. If custody or visitation is an issue, the parties will have attended Family Court Services for mediation. The recommendation of the counselor will be submitted to the court for review.
The purpose of the hearing is to maintain the status quo, to ensure the children and the supported spouse have sufficient financial resources to maintain the necessities of life, and to balance between households a common standard of living.
The Third Step
The third step involved in a dissolution of marriage is generally the discovery phase. This often includes the taking of depositions. A deposition is generally conducted in our office, or in the office of opposing counsel, and a court reporter is present. At that time, the attorneys will be asking questions of either yourself or your spouse for the following purposes:
1. To secure information;
2. To solidify testimony so it may not be changed at future hearings or trial;
3. To obtain necessary documentation to adequately present your case; and
4. To evaluate witnesses.
After the deposition, many times subpoenas are sent out to verify the information obtained in the deposition. If attorneys do not represent you and your spouse, then you will not have to proceed through this step of the divorce.
By the time the first three steps are completed, the emotional involvement of the parties has generally subsided to the level where many cases are in fact resolved by settlement. Your attorney, or, if you are not represented, will then formulate a settlement offer for the purpose of resolving the case. If the settlement offer is accepted, or amendments to the settlement are agreeable to all parties, a final settlement agreement will be prepared. The settlement agreement essentially indicates which assets will be allocated to each spouse. It will address the issues of custody and visitation, together with support and all other matters. The settlement agreement is filed with the court in the form of a binding court order.
The Fourth Step
If the matter cannot be resolved by stipulation, the matter will proceed to the fourth step, which is trial. If the trial is expected to be shorter than three hours, it will be placed on what is called the “short-cause” calendar. The court hears this short cause calendar on Fridays. You are generally assigned a date for trial within four months from the date on which the trial is requested.
If, however, the case will take longer than three hours, it is set on the “long-cause” calendar. Under this procedure, the court will assign you a mandatory settlement conference date approximately six to eight months from the date on which the trial is originally requested. At this mandatory settlement conference, you will be required to meet with a judge or one or two practicing attorneys who limit their practice to family law. If an attorney represents you, your attorney will represent your interests during this settlement conference. The attorneys or the judge will review the settlement agreement (if you are represented your attorney will have submitted a settlement brief) and review the positions of both sides with respect to all issues. They will give a recommendation for the purpose of helping the parties resolve the case. If not resolved, the case will proceed to trial, usually within forty-five (45) days of the settlement conference.
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