Each divorce is unique; however, generally the Court will need to make decisions regarding the assets/debts, spousal support, child support (if applicable), parenting plan (if applicable), restraining order/protection order (if applicable), and attorney fees.
- Assets/Debts: The Court must categorize each asset and debt as either "separate" or "community." An asset or debt is generally considered to be "community" if it was acquired during the marriage. An asset or debt is generally considered "separate" if it was acquired before the marriage, acquired during the marriage by gift or inheritance, or in the case of earnings or accumulations, acquired during permanent separation. The reason that it is important whether an asset is considered "separate" or community" is that it can lead to inequitable results if miscategorized. For example: SPOUSE A asserts that the home is his/her own "separate" property, and SPOUSE B claims that it is "community property." If the Court believes that the home is SPOUSE A'S separate property, then SPOUSE B will likely get no interest in the home.
- Spousal Support: Frequently the court will award one spouse spousal support for a fixed period of time. Both the duration and the amount of spousal support awarded will depend on the length of the marriage, the economic positions of the parties' post-marriage, the assets awarded in the dissolution, the health/age of the needy spouse, the parties' work history and earning potential, and the parties' educational background.
- Child Support: See,"Child Support" Section in Practice Areas.
- Parenting Plan: See, "Child Custody" Section in Practice Areas.
- Restraining/Protection Orders: See, "Domestic Violence Protection Orders" in Practice Areas.
- Attorney Fees: The Court must decide whether one spouse should be ordered to pay the other side for his/her litigation expenses. This may have a significant impact if the divorce has been prolonged and contentious. The Court usually will award attorney fees if the requesting party has a financial need and the other party has the ability to pay these fees.
- Petition: To get the divorce process started, a petition needs to filed. The person who files the Petition is known as the "Petitioner" and the person who responds to the Petition is known as the "Respondent." It is essential to file the Petition in the correct court; failure to do so may lead to a dismissal. Along with the Petition, the Petitioner must also file a summons, confidential information form, and vital statistics form. Once these documents are filed, a case number will be assigned. The Petitioner needs to ensure that the Respondent is personally served with the summons and petition. If personal service is not a possibility, other remedies can be pursued.
- Case Schedule: Once a case is filed and served, the Court will issue a case schedule which includes a trial date. The trial day is usually set at least one year after from the date of filing. This does not mean that the parties' have to wait a year before the divorce is finalized. The spouses can file agreed orders anytime before trial but must wait at least ninety (90) days after the date of filing and serving the initial paperwork. It is very important for each party to abide by the case schedule; failure to do so may lead to a dismissal or default judgment.
- Temporary Motion Hearing: many people will need to have a motion hearing to decide what should happen while the case is awaiting trial. A party may need the court to decide: (a) the temporary parenting plan; (b) the temporary child support or spousal support; (c) who has to pay which bills or debts until trial; (d) what property each party gets to possess until trial; (e) who gets to live in the marital home until trial; (f) whether a restraining order or protection order should be implemented; and/or (g) whether one side should pay the other's attorney fees. These hearings are very important and carry a lot of weight at the trial.
- Investigation: before final orders can begin, typically both parties need to conduct their own investigation. An investigation may be important to verify each side's assets and debts, as frequently one party may have historically been in charge of the finances. Other concerns that frequently arise is that one spouse has hidden or shifted assets. By hiring an attorney, discovery tactics can be utilized to track down assets and ensure compliance with mandatory disclosures. Additionally, an attorney can seek relief from the Court on the aggrieved spouse's behalf if significant transfers were made after the case was filed. Discovery is not just important for assets/debt cases, it is also essential for a parenting case. Proper discovery methods can ensure that you find all of the other side's hidden skeletons in order to ensure that the court has all the facts needed to keep your child safe.
- Mediation: Typically both sides are required to attend mediation before a case can go to trial. There are exceptions for some domestic violence relationships. Most family law cases resolve out of the courtroom, so it is very important to attend a mediation fully prepared and to understand when to walk away if you cannot reach an agreement.
- Trial: If all else fails, then the parties will go to trial. Trial does not just mean that you walk into a courtroom and tell your story; you have to provide trial briefs, statements of evidence, and working copies to the court which contain all of your exhibits. You will need to ensure that your witnesses are lined up and that you can present your case in a logical and chronological fashion so that the judicial officer can follow along. However, there are also certain nuances that may seem overwhelming to some people, such as the rules of evidence, objections, and how to introduce exhibits. While you absolutely have the right to represent yourself at trial; you will frequently hear judges repeatedly ask said individual if they are sure that is what they want to do.
Whether a divorce is agreed or contested, having a legal professional assist in the process can ensure that your rights are protected, the result in binding, and that you receive the best possible outcome.
To discuss your options for an upcoming divorce, please contact Malone Legal PLLC or call us at 425-361-0687 for a consultation today.