Petition vs. Decree, 90 Day Waiting Period, and Temporary Orders
THE PETITION VS. THE DECREE OF DISSOLUTION
There is often a great deal of misunderstanding about the purpose of a Petition for Dissolution of Marriage. A case is started by filing two documents: a Summons, which gives the court jurisdiction over the party upon which it is served, and the Petition, which is simply a notice to the other party of the various items that you wish the court to deal with and the relief you are seeking.
The Petition, in and of itself, does not do anything other than outline those areas you wish the court to address. It will not automatically result in a divorce decree and can be written either specifically or generally. Sometimes, the attorney may elect to write a very general Petition so as to cover basic subject areas without getting into detail that may cause the other party to respond, thereby creating a more expensive process. Alternatively, the attorney may elect to make a much more detailed distribution of property. There are reasons for both and if you have any questions, you should feel free to ask why one method is selected over the other.
A Decree of Dissolution is the final document granting a dissolution of the marriage and stating the final terms of all the issues in the marriage like property, debts, the children's residence, etc. A Decree can only be obtained after:
a. An Order of Default is entered against a party who has failed to re-spond to service of the Summons; or
b. The parties reach an agreement and sign the final papers; or
c. The parties go to trial where a judge makes a ruling and enters a Decree. A judge's ruling is often much less detailed or thought-out than an agreement between the parties. A trial is a disadvantage to both parties, but it's inevitable if a negotiated settlement is not reached.
90 Day Waiting Period and Temporary Orders
There is a minimum 90-day waiting period which must elapse before your Decree of Dissolution can be entered and your marriage dissolved. This time period is measured from the date the Summons is served on the other party. You will not automatically be divorced on the 91st day. Before any Decree can be entered, either the parties must reach an agreement and sign papers, an Order of Default must be entered, or the parties must go to trial and have a judge decide the issues. The 90-day waiting period cannot be waived by agreement. Finalizing the divorce may require your presence in Court with your attorney, even if it is by agreement. There are some procedures that can be utilized sometimes where only written documentation is submitted.
While your case is pending, you may request temporary relief from the Court such as a parenting plan, child support, spousal maintenance, possession and use of the family home, restraining orders, and attorney's fees. Temporary restraining orders may include restraints against transferring, encumbering, concealing or disposing of assets, molesting or disturbing the peace of the other party or the children; entering the residence of the other party; removing the children from the jurisdiction of the Court; and incurring any community debts. All of these temporary measures are often referred to as Temporary Orders and they are designed to cover the period from the filing of the Motion for Temporary Orders until the Court either enters subsequent orders or a final Decree is entered.
Spousal Maintenance (Alimony), Property and Debt
Maintenance (also called alimony) may be ordered where there is a real need for it on the part of one party and the ability to pay on the part of the other. Marital misconduct is not considered in setting maintenance. Maintenance is sometimes awarded temporarily pending trial, but the Court is usually reluctant to award post-divorce maintenance except under appropriate circumstances. The law requires a Court to consider the following factors in determining whether to award maintenance:
a. Length of the marriage;
b. Education level of the parties;
c. Employment histories of the parties;
d. Age of the parties;
e. Physical and emotional condition of the parties;
f. Whether or not the party seeking maintenance is also receiving child support; and
g. The standard of living established during the marriage.
While the above factors may justify the need to order maintenance, maintenance is also dependent on the other party's ability to pay and is often a balance between the two competing needs. It is in the discretion of the trial court and there is no fast and sure rule in this area.
As part of the dissolution, the Court makes a disposition of the property and liabilities of the parties, either community or separate, as appears "just and equitable" to the Court after considering all relevant factors. This means there is no basis to assume property and debts will automatically be split 50/50. There is also no basis to assume that property over which there is disagreement will be sold--that is very rarely ordered.
The factors to be considered by the Court in dividing property include:
a. The nature and extent of the community property;
b. The nature and extent of the separate property;
c. The duration of the marriage; and
d. The economic circumstances of each party, at the time division of property is to become effective, including:
1. Awarding the family home to the party providing the primary residence of the children, or
2. Awarding more property to a party who lost income producing potential during the marriage or who simply has noticeably less income producing potential than the other party
Trial Setting/Settlement Conferences and Finalization
If the other party responds by filing a written response in the Court file, the case can only be resolved by voluntary dismissal, agreement or trial. (All trials are to a judge only. There are no jury trials.) If it appears that an agreement is not possible, your attorney will send in a Notice to Set for Trial. The timing of this notice is variable depending on various circumstances, including the discovery process and other matters.
Once the notice is filed, the Court Administrator will send out a Notice of Settlement Conference. This is scheduled about two to three months after the No-tice to Set for Trial is filed. It is an opportunity for the parties to settle the case, without trial, with the input of a judge, although not the one assigned to the case. If the parties reach an agreement, a record is made and the case is over. If they do not settle, the case is set for trial at a later date.
The trial date is set by the assigned judge. It is susceptible to being bumped by criminal cases or cases that are older in time. Therefore, it is sometimes hard to be sure a date is firm until just before the actual date.
After negotiation, Settlement Conference, or trial, the attorney's will prepare the final documents, such as the Decree of Dissolution of Marriage, Findings of Fact and Conclusions of Law, and, if applicable, Final Parenting Plan and Order of Child Support.
The Decree of Dissolution governs the parties' future relationship with re-gards to the assets, debt, custody, visitation, and support of the children, and, last but not least, dissolves the marriage. Not until the judge signs the Decree is the marriage actually dissolved.
Do's and Dont's
* Immediately stop posting to Twitter, Facebook or other Social networking sites and restrict access as allowed. You do not want your spouse to use your own ma-terials against you. Also, use email and text messaging carefully. They create a digital *paper trail* and you may one day you*re your intemperate words quoted to the court.
* Divorce is 70% emotion, 30% law. There are often great swings of emotion at he start of proceedings and at the end. Don*t expect your spouse to be their most rational at these times.
* Court Orders take priority and should be carefully followed.
* For a court order to effective, it must be filed. However, if the Judge has an-nounced his decision orally, it is better to act as if the order is effective rather than waiting until it is filed.
* Ask questions, don't expect that you will know all the answers. The only dumb question is the unasked question.
* If you are unsure about how the case is going or why certain actions were taken, don*t be afraid to make an appointment with your attorney in person or over the phone.
* Discount what your spouse, friends and relatives have to tell you about you *rights* or what the court will or won*t do. You are paying valuable money for professional knowledge, training and experience. Your spouse, friends and rela-tives aren*t and often they are wrong, even if well meaning. If the *advice* is coming from your spouse, ignore it!
* Each case is unique. It*s final cost, outcome and circumstances will all vary from others, even if it seems similar to other cases of which you have heard.
* Supply tax returns, deeds, property descriptions, copies of debts owed at time of separation.
* Do not make agreements with your spouse if you feel under pressure. Do not sign anything without first consulting with your attorney. Do not make agree-ments unless you understand all of the ramifications.
* It is your divorce, you are expected to set the long-range goals and participate in the decision making.
* You will be asked to do leg-work and assist in securing items or information in order to hold down costs.
* For material to be considered at a court hearing it usually must be made availa-ble at least one (1) week before the hearing. Do not give your attorney infor-mation, statements or documents at the last minute and expect that we will be able to use them.
* Do not give adversary (your spouse) anything to use against you. Be cautious and do not share unnecessary information with spouse or especially with children. Do not leave information on answering machines unless you are prepared to have it used against you.
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