No matter which resolution method you choose, many steps are common to every divorce.
A divorce case is initiated by the filing of a summons and complaint. The summons is a form issued by the court clerk that serves as notice to the other party that a case has been filed.
The complaint is a document drafted by the plaintiff’s attorney that states the factual basis for the divorce. It identifies the parties, states that they were married and that the marriage has broken down, and identifies children, property and debts. The complaint also asks the court to grant specific relief, such as a judgment of divorce, child custody, child support, and a property distribution. It may also request spousal support, injunctions, and a change of the wife’s name. The complaint must be signed by plaintiff, which is the person who starts the case. The documents must be personally served on the other spouse, the defendant.
When the complaint is filed, additional temporary assistance may be requested from the court if an emergency exists. This relief, granted in the form of an order issued by the judge, can include orders for temporary support of minor children, or temporary possession and referral to the Friend of the Court.
An injunction orders one or both of the spouses to refrain from interfering with the liberty of the other, or from disposing of property and canceling insurance. If the judge grants an injunction before the other spouse is served with the summons and complaint, they are called ex parte orders.
The defendant spouse may respond to the complaint by filing an answer, addressing each of the points raised in the complaint. He or she may object to the ex parte orders and ask for a hearing. If no objection is filed, ex parte orders become temporary orders, which remain in effect until the final order or judgment unless changed by another temporary order.
Soon after an answer is filed, the court may set a date for a pre-trial conference and asettlement conference. The pre-trial conference establishes dates by which all parts of the case must be completed. It also provides an opportunity for attorneys and the judge (or the judicial attorney) to discuss and narrow the issues. The court can order mediation, a Friend of the Court referee hearing, or other interventions to help settle the case shortly after this conference. Before the pre-trial conference, each of the spouses must prepare a verified personal financial statement that is presented to the court.
In addition, both spouses may exchange financial documents. This process of acquiring information is known as discovery. Discovery may be accomplished informally through attorneys sharing information, or in a formal way through written questions called interrogatories, which can be submitted for the spouses to answer under oath.
Depositions are another way of obtaining information under oath, with the deposed person being required to answer questions, in person, in the presence of a court reporter, who makes a transcript of the questions and answers.
During this stage, it may be necessary for one or both spouses to seek assistance from the court on matters such as custody and support, temporary spousal support, attorney fees, property disposition and the like. In order to have a hearing before the judge, the party seeking relief must file a motion stating the issues for which relief is requested. At motion hearings, attorneys do most of the talking. Parties should be present but are unlikely to give testimony. Testimony is given at evidentiary hearings and trials.
Settlement Agreement and Judgment
If the case is settled by the parties without a trial, they may choose a hearing date before the assigned judge and have a signed settlement agreement and a written judgment signed by the judge. This ends the case. The judgment will incorporate all of the terms the parties have agreed on related to property disposition, child support and custody, parenting time and other issues as described in the settlement agreement.
If the parties cannot come to agreement, their case will be tried before the assigned judge. At the end of the trial, the judge will issue an opinion, which is then reduced to a written judgment by the attorneys for the parties.