Divorce Law/Family Law Article

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Orderly Justice: The Phases of a Divorce Trial
by Joseph Warren Kniskern

Phase 1: The Complaint and Summons

A divorce action begins with one spouse filing a complaint for divorce or petition for dissolution of marriage with a state court that can make decisions for both spouses (that is, the court that has "jurisdiction" over the case). A complaint is a legal paper (called a "pleading") that describes the facts and grounds for seeking a divorce and asks the court for certain relief. The plaintiff or petitioner spouse files the complaint, while the other is the defendant or respondent spouse.

The court issues a summons after filing the complaint. The summons, with a copy of the complaint attached, commands the defendant spouse to file a legal response to the complaint within a specific time (usually twenty to thirty days after receipt of the summons).

What does receiving a summons and complaint mean? It could mean you have a contested divorce. What is the difference between a contested and uncontested divorce? If there are any issues not agreed upon by both spouses, a contested divorce exists. The plaintiff asks the court to decide these matters. Since the lawyers and the court have to review many facts and the law on all disputed issues, contested divorces are obviously much more expensive and time-consuming. Uncontested divorces, where the spouses resolve all the issues and merely seek approval from the judge, are much quicker and more economical.

Does it matter which spouse files for divorce first? From a biblical standpoint, no Christian should file for divorce unless there are scriptural reasons for doing so. From a legal standpoint, it does not make much difference who files first in most states, other than receiving any psychological satisfaction by moving to end a dead marriage. However, if one spouse needs immediate support, wants child custody, or desires possession of the home, a quick filing helps secure temporary court relief sooner. This settles any disputes about these issues while the divorce continues.

Phase 2: Answer to the Complaint and Counterclaim

Within the period specified in the summons, the defendant spouse (through an attorney) will file a response admitting or denying the specific statements or allegations in the complaint. This response is an answer.

If the defendant spouse believes that he or she has some claims against the plaintiff, the defendant may file (again, through an attorney) a court pleading called a counterclaim. Like the plaintiff's complaint, it states certain facts and then requests court relief for many issues.

Phase 3: Discovery of Facts and Production of Documents

The attorneys will need to verify the facts in the complaint and any counterclaim. They must review documents and records of each spouse. This is called discovery. Each attorney files detailed lists of what they need to review in a court pleading called a request for production of documents and records or a notice of discovery and inspection. This pleading states the time and place to produce everything for review and copying.

One of the first documents most attorneys want is a financial affidavit or net worth statement. This is like a financial balance sheet, except that it includes much more detail as to personal expenses and assets. Because this pleading is usually a sworn statement filed with the court, accuracy is very important.

During discovery, each attorney may secure appraisals of property, businesses, and other assets. Current, accurate values are needed to make a fair division of marital assets. If child custody is an issue, each spouse may undergo psychological studies to make sure home settings are suitable.

Attorneys can ask questions in two ways about the case and documents produced. First, the attorneys exchange written questions (interrogatories) for each spouse to answer and file with the court. Second, each attorney can ask questions of the adverse party spouse and his or her witnesses face-to-face and under oath, using a court reporter. This is an oral deposition.

Phase 4: Legal Motions and Hearings

If attorneys disagree on how to resolve certain matters in the case, they seek decisions from the judge by filing a motion, describing the problem and the requested relief. The opposing attorney may file an objection, called a response. The judge schedules a court hearing, hears each attorney's argument, and makes a ruling (an order) resolving the matter.

Initial hearings may involve requests for temporary support and/or child custody. Attorneys will ask the judge to grant temporary orders of relief. Who will have possession of the home? How much should one spouse pay to support the other until completion of the trial? This is where a good attorney can make your life more bearable, or vice versa. Consider attending the hearing to make sure the judge knows all the facts.

If payment of attorney's fees and costs is a concern, often there is no choice but to secure temporary advances for these fees through the court from the wealthier spouse. But this gives the spouse receiving relief an enormous legal advantage. The wealthier spouse will not want to give someone pushing litigation forward potentially unlimited funds to fight. This also may remove any incentive on the part of the spouse receiving relief to settle the case early. The attorney for the needy spouse may lose the chance for payment, however, if a prompt request for financial relief from the judge is not made. Then lack of funds may force an unfair settlement.

The judge can act on other emergency matters as well. If one spouse secretly tries to dispose of marital property, or if domestic violence exists, the attorneys can set an expedited (or speedy) hearing before the judge. The judge enforces the order by police protection and arrest of violators if necessary. These emergency rulings are temporary restraining orders, temporary injunctions, or orders of protection. But they only provide for punishment of violators after the fact, not before it happens. They do not block a spouse from unexpectedly barging into the home one afternoon, kidnapping children or stealing assets, and leaving the state in a matter of hours. Although law enforcement carries out the judge's commands, too often the real damage is complete and irreversible.

The motion and hearing phase is expensive and time-consuming. Because of the severe backlog in many courts, attorneys may not obtain a hearing that requires extended argument for weeks or even months after their request. To address this problem, many judges set twenty-five or more "short" motions for hearing in quick order one right after another. This is a motion calendar. Sometimes this brings numerous attorneys to the judge's chambers waiting to have their motions heard. To get through the calendar, the judge only allows five to fifteen minutes for each hearing.

Ask your attorney which hearings are critical to the case. Many attorneys fight over technical legal matters or civil rules of procedure that may make little difference to the spouses. Some attorneys spend time filing motions for orders they know are difficult to obtain or perhaps even improper, solely to delay the case. Watch your attorney, and tell him or her not to waste time and money on procedures that do not advance each party's goals.

Phase 5: Pre-Trial Conferences and Court-Ordered Mediation

After filing the complaint and answer and after all discovery is completed, the case is at issue and ready for trial. Any attorney can file a notice for trial or note of issue, asking the judge to schedule a trial date. Do this early. Due to court backlogs, it can take months -- or more -- to get a trial date.

More information on divorce mediation:
Mediation Myths and Realities
Is Mediation for You?
The Mediation Alternative
Parenting Plans in Mediation
Mediation: Be Prepared

Before trial, the judge will want the parties to try one last time to settle all disputed matters by attending a pre-trial conference or court-ordered mediation to discuss the issues. If nothing else, it narrows down the issues for trial. Conferences of this type are an excellent way to explore alternate solutions for settlement. The pre-trial conference judge or mediator reminds each spouse that proceeding with trial will give neither one everything he or she wants. Winning is not the goal, but rather arriving at a fair settlement that will give each spouse something. It is better for parties to settle than allow a dispassionate judge to rule on so many personal matters.

At a pre-trial conference, the parties have an informal opportunity to see how the judge is reacting to various issues in the case. It is a chance to see whether the judge's view is accurate or misplaced. Use these pre-trial settlement discussions to determine whether proposed settlements are better than what the court is likely to order if the case goes to trial. Those in the legal system view this opportunity as the sweet spot -- a time about sixty days before a scheduled trial date when a case is most likely to settle.

Phase 6: Trial

There are several distinct parts of a civil trial:

Opening statements. Trial begins as the lawyer for each spouse gives an opening statement to the court. They summarize disputed issues and explain how the evidence supports a decision for their respective clients.

Plaintiff's evidence. The plaintiff's attorney begins proving up the allegations in the complaint by calling witnesses to testify and by putting documents into evidence as trial exhibits. A trial exhibit is any physical evidence that supports a point in the case being proven. The attorney usually has a detailed outline about the order for questioning each witness and the use of trial exhibits. Interviews of each witness occur before trial to coordinate testimony so the case presentation will go smoothly. Questions by the plaintiff's attorney may be given to "friendly" witnesses in advance. No witness must ever give any false testimony; that could result in perjury.

In some divorce cases, the plaintiff spouse may be the only witness called if the case can be adequately proven without using anyone else. Friends and relatives of a spouse do not usually testify unless character or integrity issues arise. Sometimes the plaintiff's attorney calls the defendant spouse as an adverse or hostile witness to complete proof of the plaintiff's case. This does not mean he or she is abusive. It merely means the court gives more leeway to questioning by the attorney.

The plaintiff's attorney questions each of the plaintiff's witnesses, called direct examination. Then the defendant's attorney may question the witness further in cross-examination. If the testimony is particularly damaging to the defendant's interests, the attorney tries to find any errors or show that the witness is not believable. This entire process of questioning witnesses tests the accuracy of testimony before it affects the outcome of the trial.

Defendant's evidence. After the plaintiff's attorney completes the plaintiff's presentation, the defendant's attorney proceeds with the other side of the case issues. Use of witnesses, including examination by both attorneys and introduction of trial exhibits, occurs in the same manner as for the plaintiff. The task of the defendant's attorney is to counter any damaging arguments of the plaintiff, while also showing the court why the defendant's case is more reasonable to believe.

Plaintiff's rebuttal. The plaintiff's attorney then has another opportunity to present additional witnesses and evidence to contradict the defendant's case (called a rebuttal). Many times this step is not necessary unless the defendant's attorney has brought up new evidence or especially damaging witness testimony requiring clarification or further challenge.

Defendant's rebuttal. In fairness, if the plaintiff's attorney presents new witnesses or evidence in rebuttal, the defendant's attorney is then also given a chance for rebuttal.

Closing arguments. The attorneys for both sides then summarize the evidence for the court once again in a manner most favorable for their respective clients in closing arguments.

Final ruling. The court then makes a decision on each of the disputed issues after taking the evidence into account, called rulings. The judge may give these rulings on the same day that the trial ends or elect to take matters under advisement. This means the judge wants to think some more about the case and make the rulings on a later date by advising the attorneys.

Phase 7: Judgment for Dissolution or Decree of Divorce

After the judge has made the final rulings on the disputed issues at trial, or if the spouses settle before the judge makes any final rulings, the judge and both attorneys work together on writing up a judgment for dissolution or decree of divorce. This is the final ruling of the court. The judgment confirms the legal dissolution of the marriage.

This judgment may include findings of fact and conclusions of law advising each spouse how the court decided each disputed issue. It advises of division of disputed property, amount and time for payment of spouse or child support, and any other matters not settled by the spouses. Custody of the children usually is given to one spouse, with specified visitation rights given to the non-custodial spouse. Unless either spouse files an appeal to an appellate court quickly (usually ten to thirty days after entry of the judgment), both spouses must abide by whatever the judge has ordered.

Before the judge enters a judgment that may be adverse to your interests, consider seeking a settlement on each of the following matters with your spouse, if possible:

Spouse support. The judge sets the amount of any spouse support after considering many factors such as: the standard of living during the marriage; the duration of the marriage; age and the physical and emotional condition of each spouse; financial resources of each spouse (including the marital and non-marital assets given to each person); time necessary to get an education or enough training to find appropriate employment; contribution made by each spouse to the marriage (such as homemaking, child care, education, and career building of the other spouse); and all sources of income available to each spouse. Additional consideration of marital misconduct (adultery, illicit cohabitation, homosexuality, etc.) may occur in some states to limit or even deny the amount of spouse support the errant spouse receives. Thoroughly discuss these matters with an attorney based upon the laws of your state. If your spouse will not agree on the proper application of all these factors, make sure the judge knows all relevant facts by having your lawyer file a post-trial motion if necessary.

Child custody. Child custody decisions under no-fault laws often bring unexpected results. Under the old law, judges usually assumed that mothers are better at child care than fathers. Under no-fault, however, there are no such sex-based presumptions, although gender bias still exists. The law presumes each parent can care for the children without evidence to the contrary. The judge therefore may rely upon recommendations of a court-appointed expert giving an impartial appraisal of custody matters. This expert will look for the most stable environment for the child.

Tax considerations. Awards of cash to even up property distributions or to supplement spouse or child support obligations can have significant tax effects on each spouse. Watch out -- this is a time bomb! The paying spouse will want the payments characterized as spouse support, while the spouse receiving support will want to do the opposite. Support payments deductible by the paying spouse are usually taxable income to the receiving spouse. Each spouse should check with tax advisors and attorneys so all payments are allocated fairly before the judge signs the judgment.

Phase 8: Compliance with the Court Judgment

With entry of the judgment, the last phase of the legal process is compliance with its terms and conditions. Like the dissolution of a business relationship, this is called winding up. It is a time for the attorneys to oversee property distributions and make the spouses legally independent.

The attorneys work to transfer real estate and personal property and to change bank accounts and insurance policies in accordance with the judgment. Debts on mortgages, personal loans, and lines of credit or credit cards are paid off or accounted for. The attorneys get releases of the spouse not required to pay each debt if possible.

Upon completion of these matters, the legal process ends. The attorneys or the court only become involved again if one spouse refuses to abide by the judgment. If so, various enforcement measures may be necessary. Usually the judge reserves the right to issue further court orders to force compliance through the seizing of property or income of the uncooperative spouse, fines, or imprisonment. Obviously, if a spouse is not abiding by any court order, contact your attorney immediately to arrange for the judge to apply the proper enforcement measure.


Joseph Warren Kniskern is an attorney in Raleigh, North Carolina with more than 32 years of experience, who has been cited in Who's Who in American Law. This article has been excerpted with permission from When the Vow Breaks: A Survival and Recovery Guide for Christians Facing Divorce.


For more divorce and family law articles, http://www.divorcemag.com/articles/Divorce_Law.