Every divorce follows basic legal steps. When we meet, we’ll explain how the process applies to your specific situation.
The first step to filing for divorce is deciding what process we will use to try to resolve your issues. Sometimes, it’s better to reach a settlement and then file it with the court.
The court process starts by filing a summons and complaint. The summons is a form issued by the court clerk that serves 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 when 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 the plaintiff (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 of the children 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, it is called an ex parte order.
The defendant spouse may respond to the complaint by filing an answer that addresses each point 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 that 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 a settlement 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 for 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.
At this point, one or both spouses might 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.
If the case is settled without a trial, the parties may choose a hearing date 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 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 each party.