How does the contested divorce process work?

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Specializing in Complex Divorce & Child Custody Law

 

How does the Contested Divorce process work?

If you are not able to agree with your spouse and file an uncontested divorce, you will have to file for a contested divorce and step through the process. This process depends in large part on the actions of each spouse throughout the divorce, but below is a general description of each stage.

Filing:

Contested divorces are started with filing stage. This stage is used by spouses to let eachother and the Court know that that they want a divorce.

The initial filing packet inclues: a 1B Complaint for Divorce, a certified copy of the marriage certificate, a R-408 statistical form, a filing fee of $210, and if there are children of the marriage – an affidavit of care and custody. Once the divorce packet is filed, you will receive an official Court summons. This summons and the divorce complaint must be served on your spouse by a constable; your spouse then has 20 days to file a responsive answer along with any desired counterclaims.

Initial Discovery:

The initial discovery stage is used to exchange basic financial information to help you understand the true financial condition of the marriage and how the property, financial accounts, and debts should be divided.

After the divorce complaint has been served, both spouses have 45 days under Rules 401 and 410 to exchange mandatory financial disclosures. These mandatory disclosures are meant to place both spouses on the same information level. After the mandatory disclosure exchange, an initial group of discovery requests will normally be exchanged, including: requests for production of documents, requests for interrogatories, and requests for expert interrogatories.

Temporary Orders:

The first time you will normally appear in Court before a Judge is for a temporary order hearing. A temporary order hearing is scheduled after one of the spouses files a motion for temporary orders asking the Court to issue orders regarding financial support, parenting plans, and other concerns.

Either spouse can file a motion for temporary orders at any time, but this normally happens within the first 3 months. It is important to note that while Judges do not generally change their temporary orders, they will consider doing so if there is a substantial change since the initial temporary orders were entered.

Guardian ad Litem Investigation:

If child custody is a disputed issue, the Court will normally appoint a Guardian ad Litem, also known as a GAL, to conduct an investigation into the parenting issues and issue a final GAL Report. This appointment usually happens during the temporary order hearing and ideally the parties would agree on who should be appointed to handle the investigation.

The final GAL Report is usually completed with 90 to 120 days after the appointment and filed with the Court.

Pre-Trial:

Once the final GAL Report is filed, the spouses have a better idea of their standing and positions in the case and enter the intermediate pre-trial stage. This stage ultimately ends with a pre-trial conference, but can also include status conferences, additional motions, and settlement efforts through negotiation, mediation, and conciliation.

In preparation for the pre-trial conference, the spouses must conduct a “4-way” meeting between both spouses and their attorneys and file a pre-trial memorandum with the Court. During the pre-trial conference, the Judge will read through both pre-trial memoranda and try to help the spouses come to an agreement and a complete settlement. If you are not able to agree, the Judge will limit the issues in dispute, schedule a trial date, and issue a pre-trial order which provides important dates and requirements for the upcoming trial.

Trial Preparation:

It is important to note that almost all cases settle during the pretrial conference and 98% of all contested divorces settle before the final trial. While it is almost a statistical guarantee that your case will settle before trial, you still must fully prepare. Nothing convinces the other side to settle more than showing you are ready and willing to go to trial with strong arguments and positions.

The time between the pre-trial conference and trial is spent finalizing your evidence and arguments. During this time, you will normally send out a follow-up round of discovery requests and use the evidence you have to conduct depositions. You will also communicate on a weekly basis with your attorney to fine-tune your strategy and prepare for your trial testimony.

Trial:

The purpose of trial is to help the Judge understand the important facts of your case so they can make a final decision on any issues you cannot agree. The Judge learns these facts by listening to the spoken testimony of witnesses and by reviewing documents provided as evidence. This process can take anywhere from several hours up to multiple days.

While trials are highly technical and complicated, your only job at this time is to focus on your testimony and clearly articulating the information you need to communicate to the Judge. As your attorneys, we will take care of the procedural and evidentiary nuances.

For an overview, the trial starts with both attorneys making a brief statement to the Judge regarding what facts they expect to present during the trial and how they would like the Judge to rule on the ultimate issues after the trial is complete. After opening statements, the attorneys will call witnesses for testimony. During the witness’ testimony, each attorney will have a chance to ask questions and provide the Judge with helpful documents.

After all of the witnesses have testified, each attorney will have the opportunity to make a final brief statement to the Judge. In this closing statement, the attorneys will summarize for the Judge the important facts that came out during the trial and explain why the Judge should rule a certain way based on these facts.

Post-Trial:

After the trial, we file comprehensive proposed findings of fact and rulings of law based on the evidence and testimony that came out during the trial. The Judge will use these findings to draft and issue a final judgment. Judges have been known to take anywhere from a single day up to 6 months to complete the final Judgment depending on the complexity of the case and the Judge’s personal schedule.

After the judgment is complete, there are appeal options available if you are not satisfied with the outcome. These options can be highly technical and dependant on the specific facts of your case. We will work with you to advise you of all your legal options and help you make the best decision going forward.

If you are considering divorce, contact our office to learn more about your options and how we can help.

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