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The Divorce & Custody Processes

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The Divorce & Custody Processes
  1. STRATEGY SESSION

The first and most important step before filing any documents with the court in your divorce, dissolution of marriage, or parentage case, is to meet with your attorneys and provide them with any information (good, bad or ugly) they need to properly represent you in your case. Your lawyer will also want to know what your goals are – what outcomes you are looking, financially and with respect to parenting. Your attorney will look at the facts of your case and give you advice on the best ways to achieve your goals. Together you and the legal professionals will chart a path forward.

  1. COMMENCING THE CASE

Once your attorney knows the basic facts of the case and understands your goals, the case can be filed. In a divorce case this involves preparation and filing of a petition for dissolution of marriage, which will lay out the grounds for divorce, a basic description of the parties, the children, the income and assets of the parties, and a “prayer for relief” which lays out what you are asking the court to do (e.g., equitably divide the marital estate, grant parenting time, award child support or maintenance). A summons will also be prepared, and a copy of the petition will be served on the other party. Once your spouse is served, he or she will be obligated to formally participate in the case by filing an appearance and an answer to the petition for dissolution of marriage.

  1. PRELIMINARY FINANCIAL DISCLOSURE

After the divorce petition has been responded to, both parties are required to exchange basic information about their finances, including tax returns, pay stubs, and a financial affidavit describing income, expenses, assets and debts. These documents are reviewed by the attorneys and the judge.  The attorneys use them in settlement discussions and in deciding whether additional written discovery or depositions need to be taken, or whether subpoenas will need to be issued to banks or other financial institutions. The financial affidavits also help determine whether there are disputes about the value of certain assets or debts.

  1. TEMPORARY HEARINGS

Bringing a case to trial can be a lengthy and expensive process. During the time that the case is pending, a party may need financial assistance from their spouse, or a set schedule for when the children are going to be staying in each party’s care. In such cases the judge may need to order temporary financial relief in the form of child support or maintenance/alimony or to order temporary parenting schedules.  If this is the case your attorney may file petitions with the court asking for such temporary orders.

  1. MEDIATION OR EARLY NEUTRAL EVALUATION

If there is no agreement on the parenting responsibilities and parenting time early in the case, it is likely the court will require that the parties meet with a certified mediator to attempt to reach a full or partial agreement.  If mediation is successful, your attorney will discuss the agreement with you and draft a final agreed judgment to be approved by the court.  If the mediation is unsuccessful, then the Court may appoint a Guardian Ad Litem (“GAL”) or Child’s Representative to conduct an investigation on behalf of the minor child(ren).  The GAL or Child’s Representative will talk to the attorneys and parties, gather all relevant information, and report to the judge a summary of their investigation and give a recommendations based on what they believe to be in the best interest of the child(ren).  Although this recommendation is not the final decision in the case, the judge will take the recommendations under advisement when they make their own recommendations or final ruling.

  1. PRETRIAL HEARING

Once the parties have exchanged all financial information and attempted to mediate any child related issues, a pretrial hearing may be necessary to help resolve any remaining unresolved issues in the case.  The pretrial hearing is usually a meeting in private between the attorneys and the Judge where each attorney will summarize the facts and outline their arguments and the Judge will often give feedback or a recommendation in an attempt to help the parties settle the case.  Often the parties will settle the case based on the recommendations of the Judge in order to avoid a full trial or evidentiary hearing; however, no one is bound by or required to agree to the recommendations.  Even if the Judge’s recommendations do not facilitate an agreement, the pretrial is still an important step in the process because it gives your attorney insight into the Judge’s thoughts so that they can better prepare their strategy for a hearing or trial.

  1. DISCOVERING INFORMATION & PREPARING FOR TRIAL

If an agreement cannot be reached after settlement negotiations and recommendations from the Judge, both parties are entitled to a full trial.  Most judges will require the discovery to be updated and set a deadline for the exchange of all discovery and updates.  Your attorney will spend a significant amount of time preparing for the trial, including but not limited to, taking depositions, issuing subpoenas, preparing outlines for witnesses, reviewing and organizing documents and items for exhibits, researching case law and preparing arguments.  Your attorney will also prepare you for your own testimony by discussing possible questions that they or the opposing attorney might ask you during the trial and give you advice on how to best handle the questioning.

  1. FINAL TRIAL

Depending on the amount and complexity of the issues to be presented, a final trial can last anywhere from a few hours to several weeks.  During this time, each attorney will present their case through calling witnesses (including the parties and the Guardian Ad Litem if one has been appointed) to answer questions under oath.  They may also present documents and/or items as exhibits for the Judge to review, present case law and make legal arguments.  The Judge will then take some time to deliberate and review everything that was presented and will make a final ruling.

  1. CHECKOUT SESSION

After the Judge has issued their ruling and entered the final Judgment, your attorney should review what the final Judgment means for you and discuss any questions you have.  In addition, you will discuss any steps that need to be taken to implement the final judgment and how those steps should be handled.   You may also want to discuss further legal options such as possibly filing a Motion to Reconsider or an appeal to a higher court.

  1. IMPLEMENTATION

In most cases, the parties and attorneys will have to take some action to ensure that the Judgment is followed and implemented.  This may include selling or dividing martial assets and making arrangements to follow a new parenting time schedule or allocation of parental responsibilities.  In addition, the attorneys may have to draft post decree documents such as drafting orders to divide retirement accounts (called Qualified Domestic Relations Orders) or withholding income from the other party to pay support.  In the event there is non-compliance with the Final Judgment, your attorney may also need to file a motion with the Court asking them to hold the non-complying party in contempt.

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