DIVORCE What To Expect In Your Divorce A divorce is one of the most difficult experiences a person goes through in a lifetime. Divorce is a process, not an event. It begins by filing a Summons and Petition for Divorce and serving the other party. By law, you must wait 120 days from the time the papers have been served before you can be divorced. This may mean that nothing much may happen for several months after filing, unless there is a temporary hearing. Temporary Order Hearing: The purpose of a temporary hearing is to put in place a court order setting out the financial, parenting and behavioral rules while the divorce is pending. A temporary order may be modified and is not necessarily the same order a court might make at the end of the divorce proceeding. A Family Court Commissioner can enter a temporary support order, award possession of certain items of personal property to one of the parties, assign responsibility for payment of debts and may make provisions for custody and placement of the children. In many cases a temporary hearing and order are not needed because the parties can agree upon a temporary arrangement and reach a stipulation, which is a written agreement of the parties that is then approved by the court, making it an order. If an agreement cannot be reached, then the Family Court Commissioner will hear evidence and issue a temporary order. Mediation of Custody Disputes: If there are child-related parenting issues the parties cannot resolve themselves, the parties will be court-ordered into mediation. A mediator is a professional skilled in dispute resolution who will assist the parties in reaching an agreement regarding custody and placement of the children, if it is possible to do so. Mediation is a confidential, cooperative process, and it is often successful in resolving parenting disputes. If mediation is unsuccessful in resolving important issues regarding the children such as where they will live, then the court appoints a guardian ad litem (GAL) who is always an attorney. He or she interviews both parents to learn their positions on custody and placement. A GAL may also interview third parties, such as teachers and babysitters. The guardian ad litem ultimately makes a recommendation to the court as to what placement and custody arrangements are in the children's best interests. Oftentimes the guardian ad litem will share a preliminary recommendation with the parties to enable them to settle the dispute prior to trial. Psychological evaluations of the parties and even the children may be recommended if there are mental health concerns, or a history of substance abuse problems. In this event, the psychologist may also make a recommendation as to custody and placement of the children. Although these recommendations are important, the ultimate decision always rests with the Judge. Discovery: During the period after filing and before the divorce is finished, the attorneys gather information needed for the property division by what is known as "discovery", the purpose of which is usually to locate and obtain the information to help put values on various assets (and debts). The value always used for divorce purposes is "fair market value", which is what a willing buyer, in an arm's length transaction, would pay for an asset. For example, the family home may be appraised to determine its fair market value (what it would likely sell for). Retirement assets such as pensions, 401(k)s and profit sharing plans also can be valued, and items such as the cash value in life insurance policies and amount of debts will be verified. Property should be valued as of the date of the divorce, so updating usually needs to be done at the conclusion of the case. The parties complete a Financial Disclosure Statement and share that information with each other. Settlement: Most cases are resolved through negotiation. Settlements are usually preferable to litigating a case before the judge. Settlements are generally not reached, unless there is compromise on the part of each party. Negotiation is a give and take process. It is always your case, however, and while we will provide our best legal advice, any settlement is your decision. It is important to keep in mind the cost of arguing compared to the value or importance of the issue as you proceed in this process. Sometimes cases simply cannot be settled. In this event, your case is presented to the judge for decision. You will testify, as will your spouse, and additional experts also may testify if there are valuation issues, or if an accountant's testimony would be helpful to the court on support issues. If custody and placement issues remain unresolved, teachers and babysitters may provide additional helpful information to the court. Divorce issues are not always clear cut. Often times, clients want to know how a judge will decide a certain issue. While our experience enables us to give you some idea of how a judge may rule, we cannot provide "black and white" answers. There are always two sides to every issue, and it is difficult to predict how persuaded a judge will be by either side. We know that this can be frustrating, and we appreciate that. The one thing you can expect in a divorce process is the unexpected. Final Hearing or Trial: If your case can be negotiated to agreement, it will be reduced to a written document known as a Marital Settlement Agreement. This document will contain all of the terms and conditions of your agreement, in addition to reciting various legal provisions required by law. You will be asked to sign this document. If you have a Marital Settlement Agreement, and the 120 days have expired, you can more quickly proceed to court for a "default" (i.e., uncontested or "agreed upon") divorce. In this event, the actual divorce hearing takes about 20 minutes. The petitioning party testifies to verify the factual matters in the divorce petition, such as residency, the date of the marriage, etc. and asked to state whether or not he or she believes the marriage is irretrievably broken. The woman, in every divorce and regardless of her age, will be asked whether she is pregnant because the court must ensure that there are no children "on the way" to be provided for in the parties' Judgment of Divorce. After the petitioning party takes the stand, the responding party will testify. The responding party likewise will be asked if he or she believes the marriage is irretrievably broken. Both parties are asked if they have filed their Financial Disclosure Statements and fully and fairly disclosed all income, assets and liabilities. If a Marital Settlement Agreement has been reached, each of the parties will be asked whether they understand all terms and believe the Agreement is fair and reasonable. If a wife wants to take back her maiden name, this can be taken care of in the divorce judgement. It can be stressful to be on the witness stand. You may bring a friend or relative to court with you if this assists in providing emotional support. Courtrooms are public places, and there may be other people sitting in the courtroom waiting for their cases to be called during your contested or uncontested hearing. Once the parties have testified, the judge reviews the Marital Settlement Agreement and approves it, granting the parties a divorce, effective immediately. The judge will also inform each party that he or she is not free to remarry for the next six months. Sometimes there are issues regarding gifted or inherited property which, subject to certain rules, is exempt property from the marital estate. Unfortunately, the issue can arise as to whether something was truly "gifted" or not. Once your case has been resolved, there are often some "housekeeping matters" to be completed. A Judgment of Divorce is prepared, either incorporating the Marital Settlement Agreement, or the terms of the Judge's decision. Deeds may be needed for the transfer of property, or orders (called QDROs) needed to divide retirement benefits. If you have been carried under your spouse's health insurance plan, we may need to ensure the conversion of your health insurance benefits. Car titles may need to be transferred. We can work with you to ensure that the divorce provisions are carried out, and will also discuss whether you should execute a new will, and will assist you with putting Powers of Attorney for finances and health care in place, if you are interested in doing so. (This information is intended to be viewed as general information. Your individual situation or needs require consultation with the advice of an attorney. Please call or e-mail Stu Krueger, Gwen Kuchevar,  Ken Pletcher, or Maxfield E. Neuhaus regarding your particular situation, questions or concerns.)