This guide is to provide you with a quick 101 on what to expect in a family law litigation
If I file a Court action without an Agreement, what should I expect?
Unless you are filing one of the following: ? Petition for Contempt (to enforce a party to comply with a prior Court Order), ? Petition for Protective Order (or Peace Order) or a ? Modification of Child support (only), Without having an executed agreement prior to these filings, the court process from the time you file your initial complaint or modification of a prior order, can take nine months or more. It will require you to attend several court appearances before the final merits hearing, and may also require you and/or the opposing party to attend certain court ordered services, such as parenting courses and mediation. If you are filing a one of the documents listed above, the process is a lot quicker and I explain this process in further detail in my blog posts about Petition for Contempt, Petition for Protective Order (or Peace Order), and Modification of Child Support.
How do I file a family law court action?
Regardless of whether you are filing for divorce, custody, child support or modification, the filing process is the same. After you file your initial Complaint/Petition, the court will then issue you a summons and you must serve opposing party with the summons along with all documents you initially filed. You will not receive court dates at this time. If you are filing for Contempt (because opposing party was not complying with a prior court order), the process is a little different: after you file the Contempt with the court, the court will provide you with a Show Cause Order, which will provide you with deadlines as to when the Petition for Contempt and Show Cause Order must be served on opposing party, the deadline for opposing party to file a written response, and a date for a hearing. The Cost to file an initial action is $135 ($145 if you are represented); and the cost of filing a Modification or Contempt proceeding is $25 (or $35 if represented).
How do I serve opposing party with what I have filed with the Court?
The summons to serve opposing party is valid for 60 days. Meaning you must have the opposing party served within 60 days. However, do not worry, if you cannot serve the opposing party within 60 days, you can request a new summons and/or request the court to allow you to serve opposing party in an alternative matter, if opposing party is evading service. If you are just seeking a new summons, you do not have to provide a reason why. However, if you are seeking for the Court to allow you to serve opposing party in an alternative matter, you must provide them with a reason and it is up to the Court to decide whether they will allow you to serve opposing party in an alternative matter. You cannot personally serve opposing party yourself, however, you can do any of the following: 1. have a friend or family member who is over the age of 18 serve him or her; 2. have the sheriff's department (in the County where opposing counsel resides) serve him or her for a fee of $40; 3 have a private process server serve him or her; 4 if opposing party is represented, it is possible for opposing party's counsel to accept serve via regular mail; or 5 if you know that opposing party will be home (or at work) when mail is delivered to his or her residence or employment, you can send the summons and pleadings via registered certified return receipt mail (requiring the other party's actual signature).
What happens after I serve opposing party?
Once opposing party is served, they must file an answer. If opposing party is served in the State of Maryland he or she must file an answer within 30 days of being served. If opposing party is served out of state he or she must file an answer within 60 days of being served. If services occurs outside of the United States within 90 days of being served.
Can opposing party ask for different relief then what I am seeking from the Court?
f the other party has issues they would like the Court to address he or she can file a Counter-Complaint. Generally, if opposing party files a Counter-Complaint they will file it at the same time they file their Answer, or shortly thereafter. If a Counter-Complaint is filed, you have 15 days (plus an additional 3 days, if mailed), to file your Answer to the Counter-Complaint.
What happens if opposing party does not file an Answer within the time allotted?
If opposing party files no Answer by the required deadline, you can request a default against the party. Upon filing for default, the Court will enter an Order scheduling a default hearing. At the default hearing, you still must present evidence to support the relief you are requesting. If you meet your burden, the Court can grant all (or part) of the relief being sought by you. However, if at any time between when you file for default and the default hearing opposing party files an Answer and/or a Motion to Vacate the Default Order, the Court will likely allow the Answer to be submitted, cancel the default hearing and have the court process proceed in its normal course, which would be the scheduling of a Scheduling Conference, which will be the first time you are in Court (unless you filed for an Emergency Hearing and/or Temporary Restraining Order regarding property issues).
The other parent of my child(ren) is harming the child(ren), how long do I have to wait to have my case be heard in Court?
There are times in a custody matters in which you may need for the Court to make an immediate (but temporary) decision, due to the actions (or inactions of the other party) which is harming the minor child(ren). If this is the case, the Emergency Motion must be filed at the same time you file the initial complaint (or modification). You must also provide opposing party with at least 24 hours prior notice of your intent to file an emergency hearing. In some counties, emergency hearings are only heard on certain days and during certain times. I should note that although you may believe that your child(ren) is in immediate danger which warrants an emergency hearing, the court may not. It is a high standard the court looks out to entertain an emergency hearing and generally an issue of where a child is to go to school is not considered an emergency (even if school is only weeks or days away). As such, you should be mindful when you file an emergency hearing and/or when you need to file a complaint or modification with the court to allow you to obtain a decision before a certain deadline (such as an enrollment in school). If the other parent is physically harming the child, call 911 immediately and file for a Protective Order with the Court in the jurisdiction you reside or where the abuse occurred ASAP.
My spouse is disposing of property without my consent, how long do I have to wait before a Court will hear my case?
Generally, a Court does not determine how to resolve property issues until the merits hearing (or an agreement by the parties is reached). However, sometimes, a party may be inappropriately spending and/or disposing of property which causes you to have immediate, substantial, and irreparable harm before a full adversary hearing can be held on the propriety of a preliminary or final injunction. If this is the case you can file for an Injunction (Temporary Protective Order) requesting that the spouse be prohibited from disposing of the asset(s) until a further court hearing can be held (if represented, only your attorney (and opposing party/counsel) must appear at the temporary protective order hearings). If a temporary protective order is granted, the Court will schedule a preliminary hearing to be held within 10 days after the temporary protective order was entered. Adversary testimony will be presented at this hearing and parties will need to appear with any witnesses. At the time of a preliminary hearing, the Court can decide what to do with the property until a final injunction hearing or a merits hearing regarding the divorce itself is filed. A motion for Temporary Protective Order can be filed when you file your Complaint for Divorce or anytime during the proceeding. Like emergency petitions, you must provide opposing counsel with at least 24 hours prior notice and in some counties, these hearings may only be heard on certain days and times.
If neither an Emergency Hearing or a Temporary Protective Order (for property) is filed what is the next step after opposing party files an Answer?
Generally the first time you will need to appear in court is at a Scheduling Conference. A Scheduling Conference is generally held approximately 2 months after the opposing party files his or her Answer. No substantive testimony is conducted and only determination of court deadlines for discovery and ordering services are made. Some jurisdictions will also provide the merits hearing date during the Scheduling Conference, other jurisdictions do not provide a merits hearing date until the Settlement Conference (which is generally the next time you will be in court, unless a party request a Pendente Lite Hearing seeking temporary relief related to custody, child support, alimony, use and possession of the family home/personal property, and/or attorney fees). I will be discuss both Settlement Conference and Pendente Lite Hearing in greater detail later on. If custody is at issue, some jurisdictions, have custody facilitator available (who are social workers or family law attorneys in that jurisdiction who donate their time to try and resolve custody issues either on a temporary or global basis). If you can resolve the matter (or part of the matter) at or before the Scheduling Conference, the agreement will be placed on the record and an Order will be submitted. If you have a settlement by the Scheduling Conference, and you are ripe for an absolute divorce, it is possible (if you have a corroborating witness with you) to have an uncontested divorce testimony to take place at the Scheduling Conference and then be divorced shortly thereafter. I should note that if you are filing purely a modification for child support, you will likely not have a Scheduling Conference and/or Settlement Conference, but after opposing party files his or her Answer, the court will schedule a child support merits hearing generally about 2 or 3 months thereafter.
What services are provided through the Court? When must they be requested? How is it determined if the services will be provided?
The Court is able to provide the below services through a family related court proceeding. Generally you must request these services by the Scheduling Conferences (although there are exceptions). Each type of service has different requirements in order for that particular service to be provided (which I explain below). Custody courses Depending on the county in which your case is being heard in, if your case includes custody issues the Court will either, prior to or at the Scheduling Conference require both parties to attend either an online or in person custody course(if you never were previously ordered to attend custody courses). Mediation When you file for custody (through a divorce or otherwise). The Court will order mediation to occur (unless there is an allegation of abuse between the parties). If this is a property matter only, you can request that a mediator be appointed by the court to try and resolve these issues. No matter what, you are always able, if both parties agree, to obtain a private mediator prior to or during the course of a matter filed in the Court system. The concept of mediation will be provided in greater detail in another blog and video. Best Interest Attorney (BIA) The court may order an attorney to be appointed to advocate for the child(ren), if the Court determines it is necessary, after considering factors such as: The level of conflict between the parties; Inappropriate adult influence or manipulation; Abuse or neglect; Mental health problems of the child and/or parties; Alcohol or other substance abuse issues; and/or Relocation issues This attorney would be appointed by a Judge and will have all access to the child(ren) and information and documentation related to the child(ren). Fees are associated with said attorney that must be paid by both or one party. Privilege Attorney Only can determine whether a child's medical records, including any psychological records can come in as evidence. This includes possibility having the child(ren)'s medical professional(s) testify. This can be the same person as the BIA, if the court orders the BIA with that authority. Without a privilege attorney the child(ren)'s medical records are not admissible. Fees are associated with said attorney that must be paid by both or one party. Custody Evaluator License social worker who works for the Court. The social worker investigates both parties (which includes interviewing both parties, the child(ren), collateral witnesses, and possibly visiting the homes of the parties). Once obtaining the information and documents the custody evaluator will provide a report and recommendations to the Court. He or she may also testify in Court regarding how they came about deciding said recommendation. There is no cost, if this service is ordered. However, like having a best interest attorney involved, there must be evidence that supports the need for having a custody evaluator involved in your case. Parent Coordinator Is a private social worker appointed by the Court during the pendency of the action to try and have the parties work together and help them make decisions on behalf of their children. A Parent Coordinator may be appointed at the conclusion of a court action, but only by the consent of the parties. There are many ways the parent coordinator can assist the parties. However, the avenues used by the parent coordinator must be agreed upon by the parties. Fees are associated with said parent coordinator that must be paid by both or one party. Drug/Alcohol Testing Done when requested (generally at a Scheduling Conference). Depending on the county, the parties may be responsible for the cost of conducting said test(s). Psychological Assessment A psychological report can be completed by a psychologist appointed by the court. The psychologist evaluates the parties and/or their child(ren). The psychologist then provides a report to the court. Like a custody evaluator the psychologist can testify in Court how he or she reached their conclusion. Fees are associated with said assessment that must be paid by both or one party. Costs vary, depending on the individual provider's fees and the extent and scope of the evaluation. Pendente Lite Hearing At the Scheduling Conference, you can request a Pendente Lite Hearing, requesting the Court to make a temporary decision regarding either visitation, child support, alimony, use and possession of a family home/personal property, and/or attorney's fees. Some jurisdictions require you or your attorney to make a brief oral argument why a Pendente Lite Hearing should be scheduled, other jurisdictions provide you with the opportunity to have the Pendente Lite Hearing at the same time you have the Scheduling Conference. When determining what Pendente Lite relief should be award, the Court looks at the status quo of the parties. This is a much different criteria then at a final merits hearing. Specifically because, you are limited to at most a 2 hour hearing for a request of Pendente Lite relief. Settlement Conference This is the Court's last ditch effort to have the case resolved before the merits hearing. Again, depending on what county your case is in, you will be in front of a judge, a retired judge, or a magistrate. Generally, attorneys only go into the chambers of a judge, retired judge, or magistrate to figure how your case can be resolved (if at all). If a settlement is not reached and you are in a jurisdiction that provided no merits hearing date at the Scheduling Conference, you will receive a merits hearing date at the Settlement Conference. Like a Scheduling Conference, if you have a settlement by the Settlement Conference, and you are ripe for an absolute divorce, it is possible for you (if you have a corroborating witness with you) to have an uncontested divorce testimony to take place at the Settlement Conference and then be divorced shortly thereafter. Which every Judge/Magistrate you have at the Settlement Conference will not be the person who will hear your matter at the final hearing (if you cannot resolve the case). Merits hearing This is the final hearing regarding your Complaint and/or opposing party's Counter-Complaint. The court will hear testimony from you, your witnesses, opposing party and his or her witnesses, and review any admissible documents to determine what relief should be granted. A merits hearing can be as short as 2 hours or as long as several days. It depends on the issue at hand and what evidence will need to be presented to the Judge. You and your witnesses will be asked questions by your attorney and opposing counsel (or party if self-represented), and possibly the Judge presiding over the matter. This process applies to opposing party, as well.
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