One of the biggest fears in a divorce case is the unknown. One way to address that fear is by understanding what to expect of the process.
In general, a divorce begins with a document called a “complaint.” The complaint is filed by the person initiating the divorce. That person is known as the “plaintiff.”
Once a complaint is filed it is served (rule requires that the defendant is personally served in most cases) upon the “defendant.” At this point, the defendant has 20 days (including weekends and holidays) to file and serve his or her “answer.” The defendant will generally also include a “counterclaim” with his or her answer. Plaintiff then has 20 days to file a “reply” to the counterclaim.
The complaint tells the court what the plaintiff ultimately wants in the divorce (i.e., joint physical custody, alimony, attorney’s fees, etc.). The answer is the response to the complaint and lets the court know whether the defendant admits or denies the allegations in the complaint. For example, if both parties agree on joint physical custody of their children, the complaint will allege that the parties should have joint physical custody, and the answer will admit that allegation.
The counterclaim is akin to the defendant’s complaint, and the reply is akin to the plaintiff’s answer. All of these papers are known as the “pleadings” and are the basis for everything a party is seeking in a divorce.
Once the complaint is filed, the court clerk assigns a case number and a judicial department. However, at this point the parties are still not scheduled to appear in court. The setting of an appearance requires either the filing of a “motion” from one of the parties or the scheduling of a “case management conference” or “early case evaluation” by the court.
In general, a party will file a motion when he or she needs temporary relief prior to the conclusion of the case. Often parties will file motions for things like: temporary custody, temporary support, interim attorney’s fees, and exclusive possession of the marital residence. In the case of custody, the court will usually refer the parties to mediation through the Family Mediation Center.
Regardless of whether either party files a motion, the court will set a “case management conference” or an “early case evaluation.” There are several purposes for these hearings, but primarily the purpose is to determine whether any issues are settled, and the amount of time the parties need to for “discovery” and trial.
Discovery is the process in which a party obtains information and evidence that will be necessary to prove his or her case at trial. Discovery may include the issuance of formal questions from one party to the other; the request of documents from one party to the other; a request for one party to admit certain facts in the case; subpoenas of records from institutions or businesses; and depositions of witnesses. By rule, discovery begins 30 days after service of the answer. The length of time discovery is open is generally set by the court at the case management conference or the early case evaluation.
Discovery is time consuming and can be costly. However, it is necessary in order to properly prepare for trial or an evidentiary hearing.
The trial or evidentiary hearing is the only time that the court may actually hear and take evidence. Prior to that, the court is considering only arguments. At the close of evidence, the court then makes a final decision on the unsettled issues.
An important thing that every client should know is that settlement can occur at any step in the process. Parties may have reached an agreement prior to seeking counsel, or they may simply want advice from counsel on what type of settlement offer they should make. In some cases, only some of the issues may settle. In those cases, there will be fewer issues to present at trial.