Going through a divorce can be a very stressful and emotional experience. For many people, the legal process is foreign and confusing. Navigating through this process often adds to this stressful experience. The purpose of this guide is to provide a roadmap of how the legal process works to minimize its stressful impact.
In a perfect world, all divorces would be uncontested. The parties going through a divorce would reach an agreement on all the major issues of child custody, child support, alimony and equitable division by themselves. They would simply need to draft and file the appropriate documents with the court for approval. This is called an uncontested divorce.
However, if the parties have a disagreement over one of these issues, the divorce is contested and the parties must begin going through the legal process. The legal process continues until all the major issues are resolved and a final order is entered by the court.
Beginning the Lawsuit
All divorces begin with filing a document with the court called a complaint. The complaint is a legal document that creates the lawsuit and is filed with the Superior Court. Once the complaint is filed, the case is created, given a case number and is assigned to a Superior Court judge.
After the complaint is filed with the court, it must be served on the other party to give them notice of the lawsuit. The county sheriff’s office can be used to serve the Complaint for a fee. However, sometimes a party will want to waive formal service and accept service by acknowledgment. Acknowledgment of service is common when the parties are amicably working together towards a resolution, or if the party to be served wants to avoid having a sheriff’s deputy showing up at their residence or place of employment to serve the papers. In the event the party filing the lawsuit does not know the location or address of the other party, they may ask the court to allow service by publication.
Once a party is formally served with a complaint for divorce, he/she usually has 30 days to respond to the filing with an answer. The answer addresses the allegations made in the complaint and raises defenses. Answers may also include counterclaims. Counterclaims allow the party filing the answer to raise their own claims and demand relief from the court. The filing of the answer formally starts the discovery period.
During the discovery period, the parties may use the power of the court to request and obtain information from the other party. A party may also request information from individuals and entities that are not parties to the divorce in certain circumstances. These requests may be in the form of written questions called interrogatories that must be answered under oath, requests for the documents, or requests for the other party to admit certain facts as true. The parties may also conduct a deposition which requires the person being deposed to appear before a court reporter, be placed under oath and answer questions relevant to the lawsuit on the record. The goal of discovery is to learn information relevant to the case, gather evidence and narrow the issues. The discovery process is six months from the time the answer is filed unless extended or shortened by the court.
While the lawsuit is pending, either party may request a hearing asking the court to temporarily resolve important issues prior to a final hearing or trial. A temporary hearing allows the court to enter an order on issues including custody and visitation of minor children, child support payments, alimony payments, or assign the use of personal property such as a vehicle or who gets to live in the marital residence. These orders are temporary and are in effect until modified by the court at a later date, or until superseded by a final order in entered in the case.
Alternatives to Trial
Anytime during the course of a case, the parties can attempt to reach a settlement. The parties may be able to reach agreement on some or all of the issues among themselves or with the assistance of counsel. The parties may also use mediation to help resolve their disputes.
Mediation is a more formal process where the parties are assisted by a neutral person who is trained to assist the parties in reaching a resolution outside of the courtroom. The mediator cannot force an agreement but often helps the parties reach an agreement by making the parties address the strengths and weaknesses of their case. Although the goal of mediation is to resolve all the issues in the case, it may have the effect of assisting the parties by at least narrowing down the disputed issues for a final hearing or trial.
The vast majority of divorce and family law cases are resolved without a trial. However, after the discovery process is complete and if mediation has been unsuccessful at resolving all the issues, the last step is a final hearing or trial. A trial may be before just a judge, known as a bench trial or before a jury. Some issues such as awarding child custody may only be determined by a judge, while others such as awarding alimony and the equitable division of property may be determined by a judge or jury.
During a trial, each party presents their evidence and asks either the judge or jury to make a final and binding decision resolving the issues. Parties may present witnesses to testify before the court and introduce other documents and evidence. A witness may be a factual witness who has some knowledge relevant to the case or may be an expert in a particular field such as an accountant, physician or psychologist who can offer specialized expertise.
Trial is generally avoided due to its time-consuming and expensive nature. However, sometimes it is the only way to resolve an issue after all other means have failed.
Once a final order is entered by the court, the parties may file certain post-trial motions or even file an appeal to a higher court following a trial.
The parties may also file contempt actions against each other for not abiding by the court’s order.
Finally, the parties may seek to modify certain issues such as child custody and child support following the divorce. However, these actions are new lawsuits that start the entire process over and may only be filed when certain circumstances are met.