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Anatomy of a Divorce - The Process Over Simplified
If your lawyer starts out trying to negotiate a settlement for you without filing in court, great! But if it is taking too long, file in court so that you some controls applied by the court. Every case has a start, and every case must have an end. If you need support, do not wait too long to file in court, or the court will think you maybe do not really need it. If you are not seeing your child(ren) file immediately, or the court may think you do not really care. If you are paying more support than you should during negotiations, and it lasts too long, it will tell a court you can afford to continue to do so.
A divorce is officially started by the filing of a Summons with Notice that clearly states on it "Action for Divorce." This document, when filed, has a fee of $210.00 to buy an index number. This is the number that is then found on all of your court documents to identify your case. The spouse that files the Summons and pays the fee is the Plaintiff.
The Summons must then be served on the other spouse, who is the Defendant, within 120 days of buying the index number. It must be personally handed to him or her by a person over the age of 18 who is not named in the lawsuit. An affidavit of personal service must be signed by the person who served the summons in front of a notary public.
Within 45 days of serving the summons, a request for a preliminary conference should be made to the court. It requires that a Request for Judicial Intervention be filed and paid for, $95.00. The RJI is what allows the court to assign a judge to your case. At the preliminary conference, the court will have your lawyer, or you if you do not have a lawyer, together with the other side, fill in a preliminary conference stipulation and order.
The preliminary conference stipulation and order is a document which will provide the court with a complete and succinct information about your divorce, including but not limited to: the names and addresses of both spouses; their lawyers names, addresses and telephone and fax numbers; date of marriage; names and dates of birth of the children, if any; what issues are already resolved and what issues are not resolved.
The preliminary conference stipulation and order will also "road map" your divorce. It will give deadlines as to when each step of a divorce must be completed by, including but not limited to, serving discovery demands; production to the demands; depositions; appraisals of houses, businesses, pensions, collectibles; status conferences, compliance conferences; and when the case is to be certified ready for trial. Sometimes, the trial itself will be scheduled too, in case will be needed.
If issues of custody or visitation are not resolved, the court can (and probably will) appoint a lawyer for the child(ren) at this time, called a law guardian. The law guardian is usually paid for by the two parents in proportion to their respective incomes. If issues of mental health or psychological aberration are presented, the court may also appoint a mental health forensic, also usually paid for by the two parents in proportion to their respective incomes.
If motion(s) were served as to support and other issues, the court will try to have the parties settle these issues pending the trial or final settlement at this conference too. If these issues are present, but no motions were filed yet, the court will also try to have them settled, or schedule the filing of the motions and responses.
Discovery is the process by which you both give and get proof of each other's financial situations, identify marital property and separate property. Discovery is only for finances in a divorce. A Demand for Discovery and Inspection lists all the documents you are to provide for the other side to review. Interrogatories are written questions you must answer in writing and swear to in front of a notary public. A deposition is when you, the other spouse, and both of your lawyers sit in a conference room with a court reporter. The court reported swears you both in to tell the truth, and then the other party's lawyer asks you questions and you answer them. A transcript is then provided to prove what was and was not said at deposition. At the deposition, only questions pertaining to finances may be asked.
The best way to answer a question is to actually answer the question. It is not the time for you to say what you want said. Your turn will eventually come to do so. If the question can be answered by a simple yes or no, do so. If a question requires more words, answer it in as few words as possible. If you did not completely hear the question, do not assume what the questions was, state you did not hear it completely and ask for it to be repeated. If you do not understand a question, do not assume what the asker intended, state that you do not understand the question. Do not answer a question until you are certain the asker finished the question. You do not want to risk saying what you think sounds great for you, but actually opens up a can of worms. This is how you handle answering questions at trial too.
Never, never let the other side see that you are annoyed or irritated or upset by their tactics or statements. This will let them know how to get under your skin to make you look bad in the courtroom. Do not ever say, "but in court I will not do (or say) it." If you do it outside of court, you will do it in court, and the other lawyer knows this. Always maintain total self-control no matter what is said that you do not like. If it is not your turn to talk, then do not talk. If you do not like what is being said, simply look at your toes remorsefully. Do not make faces or gestures either. Keep your hands out of your pockets. Otherwise the judge will say to him or herself, you must be everything your spouse says you are.
Hopefully, you will be able to settle the case before trial based on the information gathered through discovery, recommendations of the law guardian and the forensic expert. If not, make sure what you are fighting for is something the law allows a judge to award you, is worth fighting for, and that your facts are on your side. Never go to trial if there is a great risk of walking away with less than what is being offered in the settlement agreement.
Litigate facts as applied to the law, not emotions.
The filing spouse must file and serve a verified complaint stating grounds for the divorce. In addition to the verified complaint there are other documents that must be filed including Affidavits and a Marital Settlement Agreement setting out division of property, spousal and child support.
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"A Plain English Guide to Protecting Your Children"
Author: Mary L. Boland, Attorney at Law
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