Chapter XI
PROCEDURE
A note of caution: Changes in divorce law are constant and can occur at any time either through new legislation or new state or federal court decisions. Each year, many such changes will occur. Your best and most current information will come from a lawyer who is competent in divorce practice and who keeps abreast of such changes and who is familiar with your own particular marital history.
| Atty/Client | Married? | Jurisdiction | Grounds | Children | Sep Prop | Mar Estate | Alimony |
| Fees | Extrajuris | Contents | Settlement | Trial | Misc | Shortcut | Moving On |
Petition and summons Temporary order (usual) Temporary restraining order
Entry of appearance or waiver Answer & counterclaim Pretrial conference Discovery
This chapter discusses various procedures which are utilized in most divorce cases, although other procedures are available which are not discussed. The notion of the chapter is to acquaint you with the typical rather than the unusual.
Petition and Summons Top of Chapter
The case is commenced by one spouse filing a Petition for divorce with the proper court. See Chapter 3, Jurisdiction and Venue. The Petition contains all required data concerning the suit.
Usually, a Summons is issued by the Court Clerk which formally advises the defendant that the case has been filed and advises him/her when a written response to the Petition must be filed (twenty days after delivery of the Summons to the defendant). A copy of the Petition is attached to the Summons, as are any other court documents, such as any initial discovery requests, which have been filed or issued.
Formal delivery of the Summons and Petition must be made to the defendant, unless defendant waives that requirement in an appropriate writing (usually called a waiver).
Temporary Order Top of Chapter
When the Petition is filed, the plaintiff commonly applies for the issuance of a Temporary Order and obtains an order setting that application for hearing, usually two to four weeks later (depending upon the court's docket). At that hearing, if the parties have not already agreed to the entry of any requested orders, a hearing is conducted before the court at which evidence is presented, witnesses (usually only the parties) are examined and cross-examined and the court then enters such orders it thinks proper under that evidence.
The purpose of temporary orders is to make provision for the expense needs of the parties and
any minor children, to preserve the marital estate, and to issue any other temporary orders
which may be needed while the case is pending. Typical temporary orders provide for:
Extraordinary Temporary Orders and Procedure Top of Chapter
The "normal" temporary order procedure is described above. However, the statutes also make provision for the entry of immediate ex parte orders of restraint in those instances where the moving party alleges and testifies to the court (usually on the same day the case is filed) as to "irreparable harm" which will likely occur unless the court issues its immediately effective orders in such regards. "Ex parte" means that the hearing is conducted in the absence and without notice to the other party. Should such an order be granted, it must then be served upon the other party and a hearing must be conducted with ten days after the initial order was issued. At that hearing, this time with both parties present, any orders entered would be capable of being vacated, modified or remaining in full force and effect. Individual judges will have their own preferred procedures - some may want all requested temporary orders to then be heard but others may only want to review the particular "emergency" orders without more.
Entry of Appearance or Waiver Top of Chapter
If the defendant files no preliminary motions challenging the jurisdiction of the court (which matters are beyond the scope of Loudenback's Lay Divorce Guide) and should it be wished by the defendant or his/her attorney, an Entry of Appearance may be filed which extends defendant's response date by twenty additional days (in other words, up to forty days after Summons was served upon Defendant). The defendant may also sign an appropriate written document which waives the formal requirements of delivery of the Summons and copy of the Petition upon him/her and enters his/her general appearance in the case.
A word of caution: A typical document which does this, available at some Court Clerk's offices, waives many more things than formal service of process. Other rights which are waived in that instrument are these: Right to notice of further hearings or proceedings; right to be present at hearings; right to trial, etc. Such an instrument is potentially dangerous to the person signing it, and it should not be used casually or by the uninformed.
Answer & Counterclaim Top of Chapter
By the appropriate time, the defendant's Answer must be filed, responding to the allegations of the Petition. As well, the Answer may be coupled with a counterclaim (sometimes called a "Cross-Petition") requesting that the Court grant defendant a divorce and the relief which the defendant wants from the Court.
When this document is filed with the court, the case is "at issue," essentially meaning that each party has generally stated what they want from the court. Then, the case is then ready to proceed with its next phase.
Pretrial Conference Top of Chapter
After the case is "at issue," either party may file a motion to obtain a hearing date for a Pretrial Conference. Some counties avoid this step altogether -- court procedures will vary from county to county concerning whether to have such a hearing and what will occur at the hearing.
Essentially, the Pretrial Conference is a meeting between the attorneys and the trial judge (some judges wish clients to be in attendances) to discuss what is expected to occur at trial. At this conference, the lawyers will typically be required to declare what their clients want the court to do, identify the names of witnesses who might testify and provide a thumbnail of their expected testimony, identify documents which will be offered at trial, and perform other various requirements the court may want.
A thoroughly conducted Pretrial Conference often leads to settlement of the litigation. Often, the trial judge will express any preliminary opinions or views which he/she has concerning any disputed issues in the case, which information is of practical value concerning settlement analysis and decisions.
At the conclusion of the conference, a trial date will usually be selected. Generally (and many exceptions exist), you can anticipate that your trial will be conducted somewhere around six to ten months after the case was filed. In urban counties, it might be longer - in rural counties it might be quicker. On the trial date, if the case has not already been settled, it will be tried to the court and the issues will be resolved by the judge.
Discovery Top of Chapter
As an overlay to all that has been previously described in this Chapter, the parties may obtain from each other various types of information which will be used in analysis, settlement negotiation and trial. This process is called, "Discovery."
Several forms of Discovery exist. Written requests may be made of the other party, and may be initiated at the time the Petition is filed. Most commonly, the written requests are these:
• Interrogatories: These are written questions posed to the other party. These questions must be answered in writing and under oath.
• Request for Admissions: These are requests that the other party admit to the truth of specific statements contained in the Request.
• Request for Production of Documents: This is a written request that the other party produce for inspection and copying the documents identified in the Request.
• Depositions: Pretrial discovery may also include the taking of oral depositions of parties or witnesses. An oral deposition is much like a witness' testimony at trial, except that the judge is not present. The lawyer requesting the deposition will ask questions to the witness. The other lawyer will also be present. The conversation occurs in the presence of a court reporter, who will cause the conversation to be transcribed (reduced to writing) after the deposition is concluded.
The decision to utilize these and other pretrial discovery procedures will be made between you and your attorney.
Attorneys' opinions will vary concerning the need for such procedures. Your budget may also be a factor in the decision -- an oral deposition lasting an hour or so will usually cost around $350 - $400, in addition to the time of your attorney.
What is important in all of this is that you be totally prepared on all aspects of the case which are important to you.
If your attorney recommends these or other Discovery procedures, you should give such recommendation your serious consideration. It is unlikely that such recommendations would be made, unless your attorney considered them important in your legal representation.
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