The Divorce Process

The divorce action is begun with the filing and service of the Summons and Petition for Divorce in your county of residence. If you are the petitioner, your spouse will need to be served with these pleadings. This may be accomplished by (1) your spouse voluntarily receiving and signing for the papers, in which case he or she would make arrangements to do so in our office or at the office of his or her attorney, or (2) he or she may be served by a process server. It is also an option to file a Joint Petition for Divorce that both you and your spouse sign.

If you are the respondent (i.e., you have been served with papers), you will need to answer the Petition for Divorce. The answer is a document called the Response and will state your position as to each of the claims made in the petition. You may also take this opportunity to initiate your own claim for divorce, in which case a Counterclaim will be filed in addition to the Response.

If it is necessary to have the court set the temporary terms and conditions regarding children or finances the parties are to follow during the pendency of the divorce action, then an Order to Show Cause for Temporary Order and an Affidavit for Temporary Order will be filed concurrently with the Summons and Petition, or shortly thereafter. The Order to Show Cause for Temporary Order contains the date of the hearing and the request for the terms to be set. This first hearing is heard by a Family Court Commissioner. If you or your spouse disagree with the orders issued by the Family Court Commissioner, either party may request a review by the judge assigned to your case.

Prior to the first hearing you will need a completed financial statement, copies of your wage statements for the previous eight weeks and federal and state tax returns for the previous two years. The draft financial statement form should be forwarded to your attorney as soon as possible after the filing of the action, but no later than one week before the first hearing to allow time for verification, corrections, and typing. Whether or not there is a first hearing in your case, the financial disclosure statement must be prepared within 90 days of the start of the action.

If you have children and there is no agreement between you and your spouse as to their custody and placement, then you will be referred by the court to family court counseling services for mediation of the contested issues. If mediation does not result in an agreement, it will also be necessary to obtain a custody study (not available in all counties) and petition the court for the appointment of a Guardian ad Litem (GAL), an attorney appointed to represent the interests of your children. Most courts require that each party immediately forward a deposit to the GAL and that subsequent fees be split by the parties. The GAL will conduct an investigation and make recommendations as to what would be best for the children. The GAL participates as any other attorney at all hearings. The GAL or either parent may also request psychological evaluations.

It is necessary to gather and verify information concerning the nature and extent of all the marital assets and debts. To that end, your attorney will prepare several releases for your signature which will allow your attorney to obtain financial information with regard to your savings and checking accounts, stocks, bonds, insurance policies, as well as, the value of any pension, profit sharing or other retirement funds or any other assets or debts. Your attorney will also request this same information from your spouse. When a complete marital asset list is compiled, your attorney will meet with you to discuss proposals for the division of the marital estate.

Although the exchange of marital asset information is generally cooperative, if your spouse does not voluntarily disclose this information, this information may need to be obtained through a formal discovery process. This would include the possibility of a deposition of your spouse or other witnesses (sworn testimony before a court reporter), interrogatories (questions submitted in writing to be answered in writing, under oath), or a request for production of documents such as bank statements, cancelled checks, etc. Formal discovery is more time-consuming and costly than voluntary cooperation.

A pretrial hearing must be scheduled with the judge assigned to your case after 120 days has lapsed since the respondent was served with the Summons and Petition. If all issues in your case have been settled, financial statements have been filed with the court by both parties and a marital settlement agreement has been signed by both parties, the pretrial hearing date may be used as a default date, i.e., a final divorce hearing. If there are still issues in dispute, the pretrial hearing will consist of the attorneys meeting with the judge to apprise the judge of the status of the case, obtain orders for any GAL or experts, and to schedule a trial date. Your case will then be treated as a contested matter and proceed toward trial. If an agreement is reached and signed, a prompt final hearing date can generally be scheduled to finalize your divorce.

If either you or your spouse fail to abide by any court order including temporary orders made by the Family Court Commissioner (for example, not making a mortgage payment as ordered or not allowing placement with the children to occur as ordered), the court may be asked to hold the offending spouse “in contempt” and to impose appropriate sanctions (punishment). You should inform your attorney immediately if your spouse does not follow through on any orders of the court.

If you retain Attorney Karl D. Schefft to represent you in your divorce, he will strive toward a fair and equitable settlement. The final decision on all settlement terms, however, is up to you. Though we provide legal input and advice, this is your divorce. You will not be granted a divorce until all issues have been resolved and a marital settlement agreement is signed or until the judge renders a decision at the end of a trial. Throughout your case, we will strongly advocate your position and vigorously defend your interests. However, you should be aware that a trial is an emotionally rending and expensive experience.

Mediation involves the use of a neutral third- party specially trained to assist parties in reaching agreements on property division, debt division, spousal support, child custody, child placement, child support and related issues in a divorce. In a collaborative divorce the parties are fully represented by attorneys, but both parties and their attorneys commit to reaching an agreement through four-way meetings rather than contested hearings. For more information see our section on Collaborative Divorce.