Title: Adultery: Online Divorce Blog - Divorce Law: Understanding Divorce Proceedings

Author: Barry Roche

Date: November 2008

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.

Tip! Don’t hire a mediator without getting legal advice first. Often, people think that hiring a
mediator is a substitute for hiring a lawyer in trying to resolve their divorce.

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.

Tip! You haven’t decided to take action because you think you actually do want a divorce, and
you think that divorce can create emotional scars that take a long time to heal.

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).
Tip! Eat healthy foods. Divorce is a stress marathon - use extreme measures in your exercise
and nutrition plans to remain healthy, or become healthy.

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.

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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.

Tip! Getting the house in the divorce is not always a good deal. Women often want the house in
the divorce because they are raising a family in it or have decorated it and are emotionally
attached to the property.

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.

Tip! Lack of planning with regard to life insurance. Life insurance should be reviewed in the event
of divorce.

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.

Tip! Failure to secure a Qualified Domestic Relations Order (Quadro) in the event of a 401K or
other tax impacted investment that is divided in the divorce. If you don’t do the right thing, huge
tax penalties can be imposed on taking money out of IRAs, 401Ks, or Annuities.

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.

Tip! This is easy and I can do it completely myself. Partially true but BEWARE! Divorce can be
complex or it can be simple.

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.

Tip! Don’t let emotions guide you in determining the divorce settlement. Divorce is about a lot of
things, but is caused mainly by emotional issues or financial problems in the marriage.

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.

Tip! Next comes the discovery phase. Discovery is where one spouse learns what applies to the
divorce suit.

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