Divorce is never a pleasant experience and the decision to file for divorce is often a complicated one. The practical, emotional, and financial issues involved in any divorce action can be overwhelming, however, in certain cases, people find that a divorce is necessary in order to lead a better and more peaceful life. When there is no possibility of reconciliation between spouses, we are here to help guide you through the divorce process in as dignified a manner as possible.
A contested divorce is initiated by one spouse filing a Complaint for Divorce with the court. A Complaint lays out statistical information about the parties, lists the grounds for divorce and asks for certain relief, such as the granting of the divorce, child support, alimony or division of property. If the parties have minor children, a Temporary Parenting Plan is also filed simultaneously with the Complaint, laying out a proposed co-parenting schedule. Also filed is a Notice of Injunction, which explains that neither spouse may transfer, assign, dissipate, conceal or borrow against any marital property without permission by the court. This injunction also prohibits canceling, modifying, terminating, assigning or allowing to lapse any insurance policies. When minor children are involved, neither party may take the children outside the state or more than 100 miles from the marital residence during the divorce without permission from the Court.
Once the non-filing party, or the Defendant, is served, that person has 30 days to file a response (called an Answer) with the court. If this does not occur, the Plaintiff will set the case before the Judge and go forward with finalizing divorce through a Motion for Default. This allows the Plaintiff to decide the terms of parenting and finances. If the Defendant does file an Answer, then the negotiation process begins. If the parties do not settle and/or resolve all issues, then they are mandated to go to mediation within six months of the filing of the Complaint. This is a process that is used to allow the parties to reach a settlement agreement upon their own terms, with the help of a mediator who is a neutral party. Some divorce courts require one mediation session (which is usually 3-4 hours) and other divorce courts require multiple mediation sessions.
Discovery is a term that is used in almost every contested divorce. Discovery includes all methods of each side obtaining information. For example, Interrogatories are a type of discovery. Interrogatories are made of a list of written questions that must be responded to in writing under oath, and also normally involve the production of documents. For example, routine interrogatory questions will ask each spouse to list all debts and assets and provide bank account and credit card statements. Depositions are another form of discovery, and they involve each party being questioned by opposition counsel in the presence of a court reporter, who then provides each side with a transcript. Interrogatories are routinely done prior to mediation, and depositions scheduled after a failed mediation, but either can be used at any time.
If a settlement is not reached, the case will proceed with trial, where a Judge will decide all unresolved issues. Both parties may testify and provide any documentation or other proof such as bank statements, photographs, tax returns, etc. Each spouse is also allowed to call any relevant witnesses, such as extended family, mental health professionals or others. At the end of the parties’ proof, the trial judge will issue a ruling. This ruling will place a value on all property, divide the assets and debts between the spouses, determine if alimony will be paid and if so the type and amount, and order who will pay court costs and attorneys fees.