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The Process of Divorce
The process begins by an attorney for one party writing a letter of introduction to the other spouse advising them that they have been retained to commence divorce proceedings and suggesting and asking for the name of that spouse's counsel. Too many participants ignore that letter which then requires the plaintiff, the moving party, to serve a Summons and Complaint via the Sheriff's office upon the other spouse. If an attorney is retained, the attorney can acknowledge receiving the Summons and Complaint, thus eliminating the embarrassment and anxiety of having legal papers served by the Sheriff's officer. Once the Complaint has been filed and served upon the other spouse, the defendant, ordinarily has 35 days to answer the Complaint and file a Counterclaim for divorce if desired.
It may take anywhere from six months to three years to have a Hearing, depending upon the backlog of cases in the county where filed. However, if a settlement on all issues is reached the case is then known as an "uncontested case" and can immediately be scheduled for disposition. At an uncontested hearing the Court requires the plaintiff, as many times both parties, to appear and briefly and informally establish through a minimum of testimony the grounds for divorce as well as the parties understanding, willingness and acceptance of the terms of the settlement agreement. Thus, if the parties are able to reach a settlement on all the issues, they can be divorced in as short a time as it takes to file the Complaint and go to the Courthouse. There are some counties which will permit a "divorce by appointment" where the Family Court Judge will accept the initial pleadings, filing fees and hear the final uncontested case all at the same time.
It is the contested case that drives people to their therapist and sometimes the poor house. And here's why. The longer it take to divorce the longer the conflict continues. During this period of conflict there are a multitude of issues which arise. Those issues are generally custody, support, medical and life insurance, payment of taxes, mortgage payments and other debts, auto repairs, college expenses and others. These are the same issues which must be dealt with in a final settlement but because of delay become a real part of the interim process. At any time after the filing of the Complaint for Divorce or Answer and Counterclaim for Divorce, each party is required to file a statement disclosing all income, benefits of employment, budget, assets, debts and other pertinent information relevant to the divorce process.
This statement is known as a "Case Information Statement". It is required. In low asset/wage earner types of cases the Case Information Statement is generally sufficient for purposes of negotiation and settlement. Where the forms of income and benefits of employment become more complicated and the asset structure more complex and of greater value, more information is generally needed. This is accomplished by the serving of Interrogatories which are written questions which the other party must answer under oath. Another form of discovery is known as a "Notice to Produce Documents" which requires a party to produce the original documents relating to financial and equitable distribution matters.
Lastly, where clarification is necessary or when a party is suspected of hiding assets or income, a party may depose another party. A Deposition is a procedure where a party is subpoenaed to the opposing party's attorney's office and is often asked to bring certain documents and records. Counsel for the party requesting the Deposition may ask any question which may lead to relevant evidence and the party deposed must answer those questions under oath. The questions and answers are recorded by a stenographer and may be used at a later time in Court for the purposes introducing inconsistent statements which may impeach the credibility of a party, or to establish a fact or facts.
The settlement process is an integral part of the system. The discovery process requiring an exchange of all relevant information is designed to enhance the settlement process. When both sides know the other side's evidence, valuation, asset and debt proofs, there remains little to be gained by a Trial. Assuming that legal counsel has given the client a well-reasoned opinion, there remains no reason why every case should not settle. There is a window of reasonable settlements. There is no fine line of successful settlements. So long as a settlement is within the window of reasonable settlements, whether it be on the high side or the low side, it is far better than allowing the issue to be decided by a Judge who will only have familiarity with the case for a period of hours or days that it takes to conduct a Trial. A real and distinct disadvantage of trial is that either party has an automatic right to appeal if dissatisfied with the outcome. Settlement precludes the cost of trial and the cost and delay of appeal. Appeals can take years and may sometimes result in a remand for a second trial at additional expense.
Most authorities agree that settlements have a greater success rate in the parties abiding by the terms of the settlement as opposed to the enforceability problems when the Court renders a decision. That is so because settlements are "home made", they are the result of compromise, and the parties have a better understanding of their rights and responsibilities.
Early Settlement Panel
The Family Court has created what can best be described as non-binding arbitration. It is called the "Early Settlement Panel" and is usually comprised of two experienced divorce attorneys who regularly practice in the County. each divorce case, prior to Trial, must go before the Panel who will informally listen to the settlement positions of each side and then recommend a non-binding suggestion for resolving all issues. The panels have been highly successful because they provide the parties with neutral panelists' opinions as to how they think the local Judge would decide their case. Once a party hears the recommendations against their counsel's opinion and can evaluate the other party's position.
many attorneys, psychologists, and social professionals have picked up on the national trend of divorce mediation. for a fee, usually paid by both parties in advance, the divorce mediator will gather information, obtain proposals from each side, and will formulate a proposed settlement. From there, the mediation process begins. If the parties agree on a settlement proposal and advise each of the parties to retain separate counsel to prepare a final draft to the settlement in light of all of the legal and tax ramifications.
Divorce arbitration on the other hand, is final and binding on the parties. Parties first must agree on the selection of an arbitrator as well as the issues to be arbitrated. The process is quicker and less expensive than litigation. It also limits the right of appeal only when the arbitrator exceeds the scope of arbitration or where fraud can be established.
Never Say Never - The Settlement or Judgment Can be Modified
Finality of Judgment and settlement agreements is the goal. People's lives are constantly changing, the needs of the children are changing with their maturation process, and the economic climate is becoming less and less stable. As result there becomes a need to modify written agreements and final Judgments. If that need arises, the party seeking a modification must first establish a substantial change of circumstances which renders the enforceability of the original settlement or Judgment unconscionable. It is difficult to generalize on quantum of proof necessary for modification because each family and set of facts is unique. however, in the right circumstances, factors such as inflation, cost of living, job status, and illness or disability may trigger a modification.
The need for modification is often frustrated by lack of proof and misunderstanding of the system. If a good reason or suspicion exists, the court will permit additional discovery such as depositions or production of tax returns, pay stubs or other documents. This is know as establishing a prima facie case.
It is extremely important to know that modification of child support is prospective only. Under Federal and State statute there can be no retroactive modification for child support, even when the child may no longer be residing with the custodial parent. The party seeking modification must file a Notice of Motion (Court application ). The modification, if granted by the court, will only be retroactive to the date that the Notice of Motion was filed. Too often, people wait six months and are distressed when they are told the modification is not retroactive.
Enforcement of Orders and Judgments
Unlike years ago, the enforcement of support Orders is routine. All states are now part of a nationwide enforcement network known as URESA (Uniform Reciprocal Enforcement of Support Act ). The Probation Department in each county has personnel to process URESA applications. wage execution, attachment of tax refunds, contempt proceedings which may result in jail, lottery winning attachment, drivers and/or professional license suspension are some of the tools available for enforcement.
If the divorce is being filed under one of the seven fault grounds (including extreme cruelty, adultery, abandonment, substance or alcohol addiction, institutionalization, deviant sexual conduct and incarceration), the 18 month separation period, required for a no-fault divorce, is waived. However, each ground for divorce has its own stipulations.
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