What to Expect When You’re Expecting (a Divorce)
Uncertainty is perhaps the unifying feature of all contested divorces. In the midst of it, your future living situation, financial health, and time with the children might all at once seem in doubt. Clarity will come in time. In the interim, to help shine light on the legal process, we offer this primer on divorce procedure.
Divorce procedure varies by the county, particularly in cases with minor children. But since this blog is meant to transcend beyond county lines, we have distilled the process to its most basic elements. Here are the steps common to most courts:
- Pleadings. A divorce action begins when a spouse files a complaint and the clerk issues the summons. Once the other spouse is served, he or she must answer the allegations within 21 or 28 days, depending on the method or location of service. The complaint and answer frame the relief each party seeks.
- Scheduling Order. Once the defendant files an answer, courts issue a scheduling order. The scheduling order identifies important dates for the proceeding. The scheduling order will most likely order mediation, set a date for a settlement conference, and set a cut-off date for discovery.
- Discovery. Discovery is the process by which parties to a lawsuit can formally obtain facts and opinions material to the issues at stake. Discovery opens when the summons is issued and closes on a date designated by the scheduling order. Usually, the period lasts for 90 to 120 days. The scope of discoverable information is rather broad; a party can obtain any document or information reasonably calculated to lead to evidence admissible in court.
- Temporary Orders. Family courts have broad authority to issue temporary orders that preserve the status quo, promote orderly and efficient proceedings, or ensure a child’s needs are being met. Temporary orders are available throughout the pending action and they remain in effect until they are modified or on entry of a final judgment.
- Mediation. Almost all courts refer divorces to mediation as a matter of course. Mediation is where parties to a dispute meet with a third-party mediator who helps facilitate confidential settlement negotiations. The mediator is neutral and has no attorney-client relationship with either party. While the mediator has no authority to compel settlement or decide facts or law, the mediator is typically someone familiar with how your judge rules on certain issues, and therefore should be able to help provide guidance on fast-tracking your issues to resolution. As opposed to trial where judge’s decide the facts, mediation is designed to promote voluntary agreement between parties. The increased use, acceptance, and availability of mediation has helped alleviate crowded court dockets.
- Settlement Conference. A settlement conference is an opportunity to update the court on settled or unresolved issues, set a trial date, discuss procedural or evidentiary issues, and gain insight on how the judge might rule on matters in dispute. Judges may meet with counsel in chambers and, other times, the conference occurs on the record in open court.
- Pro Confesso. The pro confesso hearing is usually the last step before the divorce becomes final. Courts are required by statute to take specific testimony before granting a divorce. At the hearing, a party, usually the plaintiff, appears in court to confirm the facts giving rise to the jurisdiction, the marriage remains broken, there is no reasonable chance of reconciliation, and other matters. Once the party gives the required testimony, the court enters the judgment of divorce.
- Post-judgment. Often, a divorce judgment is entered before the parties have fully performed all the terms. So, courts retain jurisdiction over the matter to decide disputes that arise over performing the judgment. Such disputes commonly involve refinancing real estate or payments that come due after the divorce. Courts have contempt power to coerce a party's compliance with the judgment or punish a party for violating it.
If you have questions about what to expect in your divorce proceeding or another matter, contact Brett Schlender or another member of Foster Swift’s family law practice.
Brett specializes in divorce, custody, child support, spousal support, and other disputes personal in nature. He has settled multi-million dollar marital estates, prevailed in complex asset-valuation disputes, and helped clients tailor divorce settlements to meet their foreseeable needs.View All Posts by Author ›