Divorce Law: Understanding Divorce Proceedings

By: Barry Roche
Submitted: 2007-01-17 16:23:54
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Divorce Proceedings differ from one country to another and the length of time it takes depends on the nature and extent of the ancillary issues to be resolved as well as the court's caseload. However, in the United States, you're probably looking at a year or more IF the matter proceeds to trial.

I say "if" because the court would prefer the parties to negotiate their own settlement rather than have the court impose its own decisions on the parties. Consequently, while divorce proceedings may well need to be instituted, this does not mean that your case will necessarily end up in a contested hearing (i.e. trial). What the court process tends to do, in the majority of cases, is put pressure on both parties to be reasonable and to leave out the emotional content in their deliberations and negotiations. If attorneys are representing both parties, then the mounting legal fees are also likely to influence the parties to "work it themselves". Some lawyers also have a tendency to unnecessarily "inflame" the situation, which is not helpful.

WHERE CAN YOU COMMENCE DIVORCE PROCEEDINGS:

Again, different countries and States have different rules. However, it usually doesn't matter where you got married. Rather, to establish jurisdiction you normally need to satisfy some residency, domicile or citizenship before you can file proceedings. In the United States, the situation varies from one State to another although many States require that you must have resided in that State for about 6 months immediately before instituting the divorce proceedings. In Australia on the other hand, provided you are an Australian citizen or have been resident or domiciled in Australia for the last 12 months, you can file for divorce in any registry of the Family Court of Australia or even in any registry of the Magistrates Court. Unlike the United States, divorce and family law is governed by a Federal Act rather than State Acts, a much simpler and straightforward process.

Here, we are going to concentrate on the United States. The benefit of you initiating the proceedings is that you get to choose the jurisdiction.

THE INITIATING DOCUMENTS:

These vary but generally speaking, the person filing for divorce or a legal separation does so by filing and serving a Summons and Petition for Divorce or Legal Separation. The Petition has two parts. The first section of the Petition sets out basic details such as the identities and residential addresses of each party, the date and place of marriage, the names and dates of birth of any children of the marriage, the matrimonial assets and so on. The second section of the Petition sets out the orders or relief being sought by the person filing the document (eg. sole custody).

In some instances, a party may also need to seek urgent orders (eg. where you are very concerned that the other spouse is or will dispose of matrimonial assets). Be sure to get legal advice if there are immediate matters that need to be urgently addressed whether they involve domestic violence, property or maintenance.

SERVICE:

Normally speaking, the other party to the proceedings must be served personally. Usually, the person serving the documents CANNOT be the petitioning Applicant. In other words, you have to get a private process server or someone other than yourself, to personally serve the papers on your spouse.

DOUMENTS FILED IN REPONSE BY OTHER PARTY:

In the United States, the document filed in response to the initiating proceeding is normally an Answer and Counter Petition. The time limit for filing this document is usually 30 days in the absence of any extension or waiver being granted by the other side.

INTERLOCUTORY APPLICATIONS:

Given the length of time before the proceedings will come before the court for hearing, it is often necessary to seek interim orders to deal with issues during the intervening period. These might be matters such as domestic violence restraining orders, sole occupancy of the former matrimonial home, interim custody, access and maintenance orders (including perhaps an order that your spouse meet the house repayments) and injunctions to prevent a party from disposing of or otherwise dealing with matrimonial property. A hearing of this type is sometimes referred to as Interim or Temporary Hearing or in some jurisdictions, a Pendente Lite hearing. To proceed with such an application, you would usually file a Motion or Application along with a supporting Affidavit.

The outcome of interim applications can be extremely important when it comes to custody as there is reluctance by the courts to disturb the existing status quo. For eample, if you have had interim custody of the children for the preceding 12 months, this is likely to go in your favour if and when it comes to the final hearing.

MEDIATION. COUNSELLING, CO-PARENTING CLASSES AND CASE REVIEWS:

In most jurisdictions, the court will insist that the parties attend counselling, mediation and where children are involved, co-parenting classes. The reason for counselling and mediation is to try and create an environment where the parties can hopefully negotiate their own settlement. The success rate of mediations is quite high and this in turn, reduces the number of cases the court has to deal with at a full hearing. In some jurisdictions, the parties must attend mediation or counselling BEFORE proceedings are actually instituted. One exception to this is where one party has been the victim of domestic violence.

A party can normally have their attorney present at mediation. The mediation is held on a "without prejudice" basis, which means that what is said at the mediation or conference can generally not be used in court. The role of the mediator is not to stand in the shoes of the Judge but rather, to act as a facilitator (the goal being to try to help the parties reach agreement).

The goal of requiring parties to attend co-parenting classes is to educate the parents on how to minimise the impact of divorce on any child or children of the marriage. In some jurisdictions, even the children of the marriage (over a certain age) may be required to attend a class to teach them skills to help them cope with divorcing parents. This is not that widespread as many courts are reluctant to unnecessarily involve the children of the marriage in the court and its processes.

In many jurisdictions, the court has its own Case Management Rules so as to set down a timeline for various steps to be done. Within these Rules is often a requirement that a Case Review Conference take place. In some jurisdictions this may be called a Pre-Hearing Conference while in others it is may be referred to as a Conciliation Conference. It is usually held in the presence of either the Judge who has been assigned the case, or a Court Registrar.

The purpose of a Case Review Conference is to discuss outstanding issues and to make Orders or Directions as to the discovery of relevant documents, the delivering and answering of interrogatories and the allocation of a hearing date.

THE INTERLOCUTORY STEPS OF DISCOVERY OF DOCUMENTS AND INTERROGATORIES:

Both parties will normally be required to disclose any documents in their custody, possession or control that are relevant to the issues in the proceedings. This is particularly so in the case of property settlement and/or maintenance matters. However it can apply to other matters as well. Bank statements, wage records, property appraisals/valuations, retirement /superannuation documentation etc. are common discoverable documents. Discovery is either done informally between the parties or on oath by way of a sworn affidavit of documents.

In some cases, it may be necessary to seek orders for discovery on third parties. This is especially so where your spouse may be hiding assets and/or income.

Interrogatories are written questions delivered by one party to the other for answering on oath within a certain time. The answers are provided in writing by way of sworn Answers to Interrogatories. In many jurisdictions, you either need the leave (i.e. permission) of the court before you can deliver interrogatories or the number of interrogatories you can ask, as of right, may be limited in the absence of obtaining the leave of the court. A party may object to answering certain questions on a number of grounds (eg. relevancy, unduly oppressive and incrimination) but it is then a matter for the court to decide if these objections are valid.

OTHER COURT STEPS PRIOR TO HEARING:

In order to narrow the issues at the hearing, either party may:-

(a) Deliver a Notice To Admit Facts or Request for Admission.

(b) Deliver a Notice To Produce Documents.

These are fairly self-explanatory.

Either party may also take depositions by serving a subpoena on either a party or non-party. The purpose of a deposition is have the person give evidence on oath about matters and/or documents relevant to the facts of the case. It is either held at the attorney's office or at some other location agreed upon.

EXPERT WITNESSES:

These may include psychologists, psychiatrists, property valuers, accountants/business evaluators etc. They are usually quite expensive, both as regards their fees for the preparation of reports as well as for attending at the trial to give evidence and be cross-examined.

SETTLEMENT:

Parties can reach agreement at any time prior to trial. Most people do, in which case they either enter into a Consent Order or sign a Marital Settlement Agreement.

THE HEARING:

In a lot of jurisdictions, hearings are before a single judge while some States have a trial by jury. In countries such as Australia, trial by jury has long been abolished. Of all the Family Law matters heard by the Court, issues such as custody, visiting rights and child support may be re-opened at a later date if there has been a significant change in circumstances.

Barry Roche the author of the ebook, "How To Win When Facing Divorce". He is a former Divorce Lawyer who wrote this book specially for women - available at http://www.divorceandwomen.com/help.html

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