What to Expect During a Contested Divorce

Second Hand Information
During your divorce case you are likely to receive a lot of second hand information as to what to expect. You will also probably hear second and even third hand information about the “supposed” legal processes and you may also hear your share of horror stories. Unfortunately for you it is likely that you will be flooded with a lot of information about divorce and the majority of the information you will receive will be for the most part irrelevant or incorrect. You should be very wary of taking friends and family member advice when it comes to legal proceedings as incorrect information may generate confusion in your case and may leave you with unrealistic legal goals. It is important to remember that each individual divorce case is different and therefore it is extremely difficult to navigate your own divorce the same as another case.

There are two primary factors that make each legal case unique: (1) the individual facts of your particular case, and (2) the laws relevant to each individual fact. Only attorneys may provide you with reliable legal advice as to what you may expect concerning the facts of your particular case. An attorney should be able to help you navigate through your particular divorce case and may be able to predict the outcome of your legal case on the basis of your case facts. Although an attorney may be able to predict an outcome of a case in some instances there are other instances in which it may be impossible as the discretion of determining the case falls upon the rulings of the judge.

Initiating the Divorce Case
In initiating your Divorce either spouse may file a legal document with the clerk of the court. This document should either be referred to as a Complaint for Divorce or a Petition for Divorce depending upon your state and county jurisdiction requirements. The initial filing paperwork is important in that it outlines why the particular action is being made against the defendant—and should demonstrate the plaintiffs whole case. The initial filing petition may establish a set of allegations by the plaintiff against the defendant and it is not uncommon for allegations to exist in the initial divorce petition. The allegations may also be referred to as the facts of the case and should be detailed enough to present the entirety of the case in a single document. Lastly, the petition should contain the plaintiffs “prayers for the divorce” in this section the plaintiff is able to identify everything he or she wishes to obtain through the divorce proceeding—it is important to note that judges rarely will grant anything that is not explicitly written within such paperwork. The primary relief that should be asked by the plaintiff is for the divorce to be granted while all secondary reliefs may concern the split of marital property, alimony, child support, child custody, etc. After the document is prepared the plaintiff is required to sign an affidavit under oath that ensures all of the facts provided within the document and alleged are true. Once the affidavit is signed then the petition and the affidavit are filed with the superior court clerk in the residential county of the defendant. Once the correct documents are filed then the divorce proceeding may commence at the courts discretion.

Service of the Divorce Case Upon the Defendant
Under both the Federal and State Constitutions every individual is entitled to “due process” of the law. Under the due process clause an individual has a right to know any legal claims or accusations brought forth against them by any opposing party. In a divorce case this means that the plaintiff must inform the other spouse of the filing for the divorce in order for the defending spouse to exercise their legal rights. In every case there is a requirement that the other party be notified and receive a copy of such documentation to make the divorce proceeding valid. If the process is not done correctly then the entire case including any previous ruling may be appealed and therefore null and void. It is therefore necessary in every divorce case for the plaintiff to perform a certificate of service process for the Defendant.

Service by the Sherriff – The most common way a plaintiff may complete the certificate of service requirement is to have the Sheriff of the defendants county of residence legally serve the defendant by furnishing a copy of the legal proceeding to the defendant in addition to a court summons and in turn receiving the defendants signature verifying they received the court paperwork. The Sheriff is then able to verify through the signature the particular date and time the delivery was made in addition to a documentation log of every time an attempt was made to deliver the divorce petition and summons. In any case the defendant is considered to have been adequately served once they are handed the Complaint and official court summons by the Sheriff.

Service by a Private Process Server – The secondary option is to have a private company personally deliver the Petition and Summons to the Defendant. In most cases the use of a private process server must be approved by the court and a specific company is appointed to the role. In the case of the use of a private process server once a delivery of documents has been made the process server will sign an affidavit stating the content of the delivery and the date in which the documents were received by the defendant. Once the affidavit from the process server is filed back with the court then the certificate of service requirement is considered fulfilled and the divorce proceeding may continue.

Acknowledgement of Service by the Defendant – In some very rare cases the defendant will have considered the terms of the divorce and may be free and voluntary in completing the necessary paperwork to initiate the divorce proceeding. If this is the case then all that is needed is for the defendant to sign a verification form stating that he or she has been served with the petition and court summons. This verification form is also known as the acknowledgement of service and must be signed in the presence of a notary public and must be returned or then filed with the clerk of the court. Once the acknowledgement of service is filed then the defendant is considered served on that filing date. Lastly, due to the defendants willingness to accept and complete the divorce documents any person may be appointed to deliver the document or the documents may be mailed.

Absent Defendant / Service by Publication – In some cases the defendant may be absent, cannot be located, or may be intentionally avoiding service of the plaintiff. If the defendant is absent and it can be demonstrated that diligent efforts were made to serve the defendant then the court generally accepts for the defendant to be served by publication. When service is made by publication the plaintiff must run an advertisement for the legal proceeding in the legal paper and or local newspaper for a particular amount of days. After a waiting period the divorce proceeding may carry on even if the defendant has not made contact or physically received a copy of the court documentations.

Answering the Complaint
If you are on the receiving end of a divorce petition then you are required, once served, to file an “Answer to the Petition”. When answering the petition the defendant has the ability to admit or deny any and all allegations alleged in the petition by the plaintiff. If a counterclaim is required then the defendant my ask for the plaintiffs petition to be denied and instead grant the defendants petition for divorce. The answering for the complaint may also request prayers for relief similar to those that may be made in the original petition. It is common for the defendant to file a counter claim in addition to answering the petition because it is necessary especially if the defending party disagrees with the plaintiff’s prayers for relief for the divorce. Once both parties have notice of the initial proceedings or official “notice” any answering of the petitions, or other court papers, may be served to the other party via— certified mail, hand delivery, or through the party’s attorneys.

Discovery
Once a petition has been filed and an answer has been received the parties can begin the legal processes of discovery. Overall discovery is the processes by which both parties are able to request information and exchange any and all information which may be provided in court as evidence or may lead to information that is relevant to the divorce case. Discovery is typically viewed in three separate phases’ interrogatories, request for production, and depositions. In interrogatories both parties request in writing the answers to questions pertinent to the divorce proceeding and it becomes mandatory for the other party to respond to the written questions via “answers to interrogatories” and all answers are considered to be made under oath. Discovery should be limited to the scope of the divorce and may include lines of questioning relevant to the behaviors of the parties, parenting abilities; telephone records finances, and many other forms of personal information’s.

The facts outlined in the initial petition and responses determine the overall scope and extent of the discovery process. Discovery overall makes it possible to obtain copies of all documents and know how you may respond to particular questions when asked in court—the discovery process is important in the respect that it functions as an unofficial pretrial. Once questions are received in discovery the testimony is locked in and any faults in answering or changes of testimony may be used to impeach statements made against the other party. Because of the importance of discovery it is often necessary for the parties to retain counsel or at least consult with counsel during this phase of their divorce proceeding. There are however, certain legal restrictions that outline the time period in which the discovery process should take place. Although legal restrictions are outlined in your states statutes pertinent to discovery the court may extend the length of discovery or shorten the length of discovery in accordance to the particular request of the individual case.

Temporary Hearing
Temporary hearings allow for the case to have closure on several different issues before the entirety of the case has been finalized. A temporary hearing does not have weight or imply the end result issued as part of the final resolution, but may be used to settle temporary problems during the course of a case or to determine if certain arrangements will work if finalized in the final divorce decree. Temporary hearings are used to determine any and all issues that either party wishes to resolve immediately. Temporary hearings may be used, for example, to determine who stays in the marital home, which spouse retains primary physical custody of children or pets, if temporary alimony may be awarded, who pays attorney fees during litigation, and to determine if family counseling or other services are needed during the divorce etc.

Custody Issues
Custody of the children is usually a factor when processing a divorce case. Although a custody hearing will be for the most part a separate process from the divorce your child custody decree will be finalized as a part of your divorce decree. To determine custody placements it may be necessary for the parents to take parenting classes, comply with a court ordered psychological evaluation, met with a Guardian ad litem, attend counseling, met with a co-parenting coordinator, etc. Such custodial requirements are often necessary and are highly expensive. In most cases it will be required by the court that you at least complete one of the previously mentioned custody processes before a final custody decree is issued. In most cases the cost of such activities is split between the parties. Recommendation may be made directly to the court from any of the previously mentioned psychological parties so long as they are court appointed to make a recommendation, otherwise they may only provide expert witness testimony on behalf of both or either party. It is important that your attorney have access to the opinions of such experts prior to their live testimony to ensure their testimony is balanced and to negotiate the cost of the evaluation and testimony.

Guardian Ad Litem (GAL) – A GAL is a person appointed by the court, usually an attorney, to determine which custodial arrangements are in the best interest of the minor child or children involved in the dispute. The GAL has the authority to investigate any accusations made by either parent in regards to the child and report their findings directly back to the court. A GAL has the authority to investigate details of the child’s life and the authority to discuss the child with other professionals; such as, teachers, babysitters, family, and doctors and report any evidence obtained from these individuals back to the court. All interactions with a GAL are serious as the GAL ultimately has the responsibility of recommending which parent should have primary custody. You should always talk to an attorney and seek legal advice on how to interact with a GAL and to ensure that the GAL is doing everything possible in determining the best interest of the child—via their court recommendations.

Mediation
A newer requirement made by some courts is that the parties are required to attend a mediation process prior to the finial court hearing regarding the divorce / civil proceeding. Mediation allows for the parties to settle any disputes and reach a settlement agreement to the divorce without having to take the matter to court and have the judge decide the outcome. Most divorce cases are settled outside of court through this alternative dispute resolution solution. During mediation the parties will attend a meeting with their attorneys and a neutral third party i.e. a mediator. A mediator is a trained professional whose primary goal is to assist you in settling your conflicts. The mediator has the ability to draft an agreement for the parties to sign once an agreement is reached. The mediator does not have the ability to personally offer you legal advice nor can they force you to agree to a settlement. There are multiple benefits for settling a divorce case at mediation; such as, being more cost effective, allowing for the parties to determine what is in their own best interest, the other spouses interest, and their children’s best interest. By settling your case outside of court you are not mandated by the court to follow a final decree in which the parties did not agree to personally. Neither party is required by the court to settle their case during the mediation process, but they are however required to attempt the mediation process in good faith.

Final Hearing / Trial
Once the discovery process has been completed and all attempts to negotiate via mediation have failed then the divorce proceeding is set for a final hearing. In most cases the parties elect for the judge to rule on the divorce based on the facts presented into evidence at trial. However, either party may elect that their divorce be decided by a jury trial. The jury trials have limited ruling ability as they are prohibited from ruling on matters such as child custody and visitation—as their primary authority is determining financial resolutions. Jury trials are also rarer due to their time consuming nature and the excessive coast in comparison with typical bench trials. If you are considering going to trial or electing to have a trial by jury then you should consider consulting with a family law attorney.

Final Order
Once a judge or jury issues their final ruling over the case they will produce a final written copy of their verbal judgments –also known as a final order. Once the judge signs the copy of the final order and it is filed with the superior court clerk then the divorce decree is finalized. In most cases the prevailing parties council will write up the final order to be signed by the judge—if neither party has counsel then the final decree will be drafted by the judges clerk and then sent to the judge to sign. In most cases you will be able to review the document before it is signed by the judge to omit any mistakes that may have been made in the order.

Settlement Agreement – In the event of reaching a settlement agreement the attorneys will collectively write a settlement agreement and or may provide a pre-drafted agreement for the other attorney to review. Once all language and terms contained within the settlement are agreed upon then both parties will sign the agreement. The agreement should not be signed without careful prior review and the signature should be witnessed / notarized. Once the document has been signed by both parties then the settlement will be produced to the court so that the court can finalize the agreement through a court order. Even if the parties agree to all terms of the settlement a court still has the authority to refuse to finalize the agreement. “If the court finds that it does not comply with the law in some manner, or is not in the child’s best interest, the court may reject the agreement- although this seldom happens.”

Your divorce case is unique and the complexities of the divorce process generally require assistance by someone with family law expertise. The attorneys of the Coleman Legal Group LLC. Have experience in a variety of divorce and family law cases and have the ability to provide critical legal advisement when it comes to your particular divorce needs. Your case is important to us and you may call for consultation and schedule a meeting today regarding you divorce claim.