The Divorce Process
The process of dissolution is commenced with specific pleadings. Legal documents are called pleadings. The pleadings that start a divorce are called the Summons and Petition. The Summons is basically a call to action, alerting the spouse receiving the papers to respond to the papers. The Summons also has some specific restraining orders designed to prevent the spouse receiving the papers from dissipating (disposing of) family assets before there is a formal hearing. The Petition is a summary of factual information about the marriage. The person filing the Petition is called the Petitioner. At the end of the Petition there is a provision indicating what the Petitioner will be seeking from the court. It is a wish list, not necessarily what the court will ultimately do.
From Susan's interview for the Masters of Family Law series on ReelLawyers.com.
Once a spouse has received the Summons and Petition he or she has the right to respond in an Answer and Counter-Petition. The person receiving the Petition is called the Respondent. The Respondent has to answer the Petitioner within thirty days of service. The Respondent may form an agreement with the Petitioner’s attorney to avoid the obligation to file an answer and to prevent a default judgment. The Answer identifies those parts of the Petition, with which the Respondent agrees and disagrees and sets forth the terms they are seeking.
Filing the Summons and Petition will trigger a hearing with the Court. In many Metro area counties, courts have installed a system of Early Case Management. Under this system, an initial hearing is set within approximately 3 weeks of filing – typically called an “Initial Case Management Conference” or “ICMC.” The ICMC is an informal hearing. There is no testimony is taken and no decisions are made by the judge. The parties are able to make certain agreements on the record and these agreements will become a party of an order. However, without an agreement between the parties, the court cannot issue a decision. Rather, the purpose of the ICMC is to determine the issues in a case and to provide parties with tools for resolving their disputes. The goal is to have the parties leave the hearing with a plan for exchanging information and documentation and alternative dispute resolution as well as a date for checking back in with the Court, often by a telephone conference to make sure that progress is being made.
In this phase of the dissolution process the lawyers use the various legal tools available to them to gather information about the issues of the case. Matters such as the identity and value of assets and liabilities, the reasons a spouse is seeking spousal maintenance, the basis of a request for custody, and financial information about income and living expenses are some of the areas in which information may be sought.
The third stage of dissolution is the settlement stage. It is at this point in a case that the spouses and attorneys endeavor to use the information received to negotiate a resolution of the issues.
If the case can be settled a document, usually called Stipulated Findings of Fact, Conclusions of Law, Order for Judgment and Judgment and Decree (also called a Judgment and Decree), will be drafted. This document is a contract setting forth the terms on which the spouses agree to end their marriage. All issues, assets and liabilities should be set forth in the agreement. Both spouses sign the Stipulated Findings of Fact, Conclusions of Law, Order for Judgment and Judgment and Decree. It is then presented to the court for approval.
If the parties cannot settle the issues of the case then the parties will have a contested dissolution, which must be resolved in the fourth stage.
At least ninety-eight percent of the cases will be resolved through settlement. However, human nature is such that the spouses may not settle until they are forced to do so. The parties to a case can only be forced to settle when it is clear that the only other option is trial. Depending on the county involved, a trial may not be scheduled for up to 12 months, or even more, after the case is started. Once the alternative of waiting before making the hard decisions is no longer available, most spouses will opt to settle.
In the fourth stage, the spouses either settle the case or they go to trial. If the spouses have settled the case and signed a Stipulated Findings of Fact, Conclusions of Law, Order for Judgment and Judgment and Decree, then the fourth stage can be a simple default hearing or an administrative hearing. In a default hearing, one of the spouses goes to court with his or her attorney for a brief hearing. The Stipulated Findings of Fact, Conclusions of Law, Order for Judgment and Judgment and Decree is presented to the court and after the court approves the contract the decree of dissolution may be entered. This is rarely required anymore. Most frequently the final hearing is resolved through an administrative hearing in which the Stipulated Findings of Fact, Conclusions of Law, Order for Judgment and Judgment and Decree is mailed to the court for approval and entry, without the need for an appearance by the parties or attorneys.
If the parties are unable to resolve their disputes then the fourth stage becomes a trial. The parties each present their facts to the court through documents and witness testimony and often expert witness testimony. The Court decides all of the unresolved issues. This is the least satisfying method of dispute resolution because it is unlikely that the judge can resolve the issues better than the disputing spouses.
Trial can be very expensive. To estimate the cost of a trial is difficult. The cost of a trial can be especially high if the complexity of the case requires the use of experts (such as accountants, vocational experts, psychologists and appraisers) whose fees would be additional to those of the attorney.
Custody trials are very expensive. The nature of custody cases can require several days of trial time in order to properly present testimony from the parties, psychologists and supporting witnesses.
The cost of a trial is expensive not only financially, but also emotionally. There is little emotional satisfaction in a trial and the cost should be examined at the beginning of a case to enable the spouses to stay on track toward settlement, wherever possible.
If a family dispute or divorce is affecting your life, contact our law office to discuss strategies to protect your best interests and the interests of your children.