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The Family Case Management System
The track that your family law case will follow through the Court system depends upon whether you have minor children. Today, all new Family cases are filed in District Court.
If you don’t have minor children, your case will be handled by a Judge. Initial divorce filings that receive an Answer or Entry of Appearance from the other side will result in the Court issuing a Scheduling Order. This Scheduling Order sets deadlines for exchange of financial information, mediation, discovery, exchanging of witness and exhibit lists in preparation for trial, the filing of any Motions, and the placement of the action on the trial list. It is a sort of "one size fits all" Order. If the other side does not respond to such an initial divorce filing, the Clerk is supposed to set the case up for an uncontested final hearing, and skip the Scheduling Order.
If you have a contested divorce without children, you will find it very difficult to follow the Pretrial Order without the assistance of an attorney. Even if you have an uncontested case, you should probably seek out an attorney to help you draft your final Divorce Judgment.
We will talk about the Family Case Management System in some detail below. If you don’t have children, however, you will not be in "the system". Other than the Scheduling Order which can issue in an initial divorce without children, you will receive very little guidance from the Court. If it is a post-Judgment Motion that does not involve children (for instance, a modification of alimony), you may not even receive a Scheduling Order. What do you do next? Call a lawyer.
If your family law matter does involve children, and regardless of whether it is an initial filing or a Motion to Modify an Existing Judgment, your case will into the Family Law Case Management System. This system was initiated in July of 1997 to take advantage of Federal money which was offered to the states to enhance the collection of child support.
The most significant aspect of the Family Law Case Management system is that family law litigants will meet with a Family Law Magistrate (and with their attorneys, if attorneys are involved) in the courtroom within a few weeks after the case is filed. This Case Management Conference is automatically scheduled by the Court without the necessity of a request by either party. After a general introduction of the proceedings to the litigants, and after having received an overview of the case, the presiding Magistrate will enter an Order incorporating all of the agreements which the parties are able to reach at that time. In exigent circumstances, the Magistrate may decide to hear testimony and then enter interim Orders on contested issues (such as child support and parental contact). The object of this initial Case Management Conference is to establish a child support obligation, stabilize the situation and make sure that both parties’ rights are respected during the rest of the proceedings. You should leave the Case Management Conference with your next court date in hand, and a detailed Case Management Order regarding how the case is to proceed. You may elect to have a Judge (as opposed to a Family Law Magistrate) determine interim parental rights and responsibilities but, to exercise this right, a party must file a written request with the Court Clerk either before or at the time of their initial Court appearance.
If you have a complex case (or a hotly contested one) you may have to return to Court several times before you can reach an agreement on all issues and/or have any contested issues decided by a Judge or Magistrate. If you reach an impasse to settlement, you will probably be required to attend mediation before the Court will agree to hear the contested issues and decide the case. (see "Mediation/Arbitration").
You should have an attorney if your case involves child custody issues or alimony, or disputes over business interests, real estate, pension or retirement benefits, or abuse. While this is not meant to be an exhaustive list and there may be many other "red flags" to indicate that you need a lawyer, it would be an unusual couple who could successfully negotiate the family law system without an attorney if any of these issues were involved.
It must be remembered that the process is inherently adversarial and complicated, and that there is no substitute for experience. If both parties have good attorneys they should be able to find and implement solutions which are acceptable for all concerned. Only an experienced attorney is going to be able to help you to analyze how the different aspects of your case impact upon each other, and what your choices may be.
When spouses seeking divorce in Maine have minor children, the court can order an investigation by a third party to gather information about the circumstances of the divorce, the parents and the children. This report will go to the court no later than three days before the hearing. Interested parties can request the testimony of the investigator. The couple incurs costs of all or part of the investigation if for any other reason than suspected abuse or neglect.
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"A Plain English Guide to Protecting Your Children"
Author: Mary L. Boland, Attorney at Law
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