The following information is a general outline of the divorce process and the general sequence of events in a divorce action. This page is intended to answer general questions and concerns. It does not, however, contain legal advice or answers for the issues in each individual case.
BEGINNING THE ACTION
The divorce action is begun with the filing and service of the Summons and Petition for Dissolution of Marriage in your county of residence. If you are the petitioner, your spouse will need to be served with these pleadings. This may be accomplished by (1) your spouse receiving the papers in the office of his or her attorney, or (2) he or she may be served by a process server.
If you are the respondent (i.e., you have been served with papers), you will need to answer the Petition for Dissolution of Marriage. The answer is a document called the Answer 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 Counterclaim for Dissolution of Marriage which will be filed in addition to the Answer.
OPTIONAL TEMPORARY ORDERS
If it is necessary to have the court set the temporary terms and conditions regarding children or finances the parties are to follow during the pendency of the divorce action, then a Motion For Temporary Relief and Request for Hearing on the motion will be filed concurrently with the Summons and Petition for Dissolution. Once the hearing date is obtained, a Notice of Hearing on the Motion for Temporary Relief and the Petitioner’s financial affidavit will be provided to the Respondent. The hearing will occur before the Family Judge or General Magistrate assigned to your case.
FINANCIAL STATEMENTS, NEGOTIATIONS, AND DISCOVERY
Prior to the hearing for temporary relief you will need a completed financial affidavit, copies of your wage statements for the previous three months and federal tax returns for the previous year. The draft financial statement form should be forwarded to your attorney as soon as possible after the filing of the action, but no later than one week before the temporary relief hearing to allow time for verification, corrections, and typing. Whether or not there is a temporary relief hearing in your case, the financial disclosure statement must be prepared within 45 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 the Family Mediation Unit for mediation of the contested issues. If mediation does not result in an agreement, it will also be necessary to obtain a home study 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. 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, the rules of family practice require mandatory disclosure of specific financial documents within 45 days of the commencement of the filing of the case. 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 compelling your spouse through filing of a motion(s) and hearing(s), 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.
A status conference must 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 status conference date may be used to enter the final judgment at an uncontested final hearing. If there are still issues in dispute, the status conference will consist of the attorneys meeting with the judge to apprize the judge of the status of the case, obtain orders for any GAL or experts, and to schedule a trial date. Your case will then be treated as a contested matter and proceed toward trial. At any time before trial that an agreement is reached and signed, a prompt final hearing date can generally be scheduled to finalize your divorce.
If either you or your spouse fail to abide by any court order including temporary orders made by the Family Judge (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.
If you retain Rosemarie Roth to represent you in your divorce, she will strive toward a fair and equitable settlement. 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 rending and expensive experience.
Mediation and collaborative family law are non-court options that take the place of foregoing 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 family law case 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 section on Collaborative Family Practice.