The Steps in a Divorce or Paternity Action
by Shane Flait (2010)

Most divorce litigants don’t have a clue about how a divorce action progresses. Learn them so you can begin to handle your case – with or without a lawyer. This article outlines the steps in divorce or paternity (for the unmarried) suit that take place in family court.

The state requires that you go to court to get divorced. The process of ‘going to court’ is fundamentally the same in all types of courts. It starts with one person submitting a ‘complaint for divorce’ or ‘for paternity rights’. The complaint begins a sequence of ‘steps’.

Ultimately going to court means asking the court to ‘resolve’ your complaint. It’ll be resolved after you have a trial on the issues of the complaint with a resulting judgment. Sometime during the process, though, you and the ‘other side’ may agree to settle all issues without need a trial. In family court (aka divorce court) you’ll need the judge agreement and signature to ratify your ‘settlement’.

So here are the essential steps, their meanings and some terminology. I’ll refer to a complaint for divorce as the example:

STEP 1: Filing the Complaint for Divorce or Paternity.

This begins the ‘action’ or ‘suit’. The ‘plaintiff’ is the one who files the complaint. He or she must notify the other side – who will then be the ‘defendant’. Both of them are called the litigants. This is a ‘civil process’ rather than a ‘criminal process’, so it doesn’t matter who’s the plaintiff or defendant.

There are formal ‘notification’ procedures to make sure and establish proof that both litigants have been notified.

STEP 2: Temporary Orders - from Hearings

Hearings are where you present suggestions – called ‘motions’ - to the judge on a variety of the divorce-related issues – your suggestion for how it should be resolved.

Based on the how the litigants – or their lawyers – argue in favor of their motions, the judge will issue a ‘temporary order’ to resolve that issue until a final agreement is made or a final judgment (i.e. a list of permanent orders) issues after a trial.

STEP 3: Discovery

Discovery is the name of the process by which litigants find out facts relevant to the divorce issues. Information you find can help make your case (or argument) stronger in your favor. You’ll use this information at the trial or as a reason to settle the case without at trial.

Discovery encompasses essentially 4 different ways for finding out information:

·         Interrogatories –for asking questions of the other side

·         Production of documents – requesting other side to give documents on anything

·         Request for admissions – request other side  to admit to some behavior

·         Depositions – recorded questioning of the other side (or others) on relevant issues

STEP 4: The 4-Way Meeting

At this meeting typically you, your spouse and your lawyers (i.e. 4 people) sit down and discuss the issues after discovery to see if you can settle the case rather than go to trial

STEP 5: Pre-Trial Hearing

At this hearing (in front of the judge), the litigants make it clear what they’ve settled on – and what there is left to be decided for a trial. Most full settlements take place here.

The judge may push for a complete settlement if there seems to be no reason justifying a trial. If a trial is an option, the judge will decide on the time and date.

STEP 6:  Trial

At the trial the divorce issues that are still ‘contested’ will be addressed. Both sides will put forth the points they wish to show, prove them as best they can, and then make a closing argument showing their points and how they were proved to the court.

There is no jury in divorce trials. The judge acts as both judge and jury.

The plaintiff makes his or her case first, then rests. Then the defendant makes her or his case. Both use direct and cross examination of each other and other witnesses as needed.

STEP 7: The Divorce Judgment

You need to wait several days to months for this. It is called the judgment of divorce nisi (conditional) which automatically becomes final in 90 days if the parties don't decide to call off the divorce and remain married!!

OPTIONAL ADDITIONAL STEPS:

Reconsideration Hearing

If something in the judgment seems terribly wrong or incorrect you can file a statement of objections to the finality of divorce for reasons such as new evidence, fraud on wife's part (perhaps excluding some assets) and request a reconsideration hearing on the judgment.

Appeal

You can appeal the divorce judgment if you think it’s unjust to the Appeals Court. Be sure to file the notice of appeal within 30 days of your judgment.

END

 

Shane Flait is a writer and educator