Stages of the Divorce Process - Filing For Divorce Filing For Divorce
The legal document that starts a divorce proceeding is the Petition for Divorce or the Complaint for Divorce. It provides some general information to the Court about you and your spouse and asks the court for relief (i.e. anything you might want to get as a result of your divorce such as custody, support, visitation, property division, etc. The person who files first is the Plaintiff or Petitioner. The other person is the Defendant or Respondent. Stages of the Divorce Process - Service of Process Service Of Process
Once the Plaintiff has filed the necessary paperwork with the Probate & Family Court, the Court will issue a Summons and mail it to the Plaintiff, along with a case number or docket number that will be associated with your divorce action.
The Plaintiff will then have to ensure that the Complaint for Divorce is properly served upon the Defendant. This is usually done by having the local county sheriff’s department deliver the paperwork in hand to the Defendant. If the deputy sheriff cannot obtain in-hand service, he or she can leave the paperwork at the last known address of the Defendant.
After the deputy sheriff serves the Defendant, he or she will provide proof of service to the Plaintiff. At that time, the Plaintiff must file that documentation with the Probate & Family Court. This tells the Court that the Defendant has been made aware of the pending divorce.
It should be noted that the Summons contains language that notifies the both Parties that an Automatic Restraining Order has been issued by the Probate & Family Court. Now, this isn’t the same type of restraining order that is issued when someone seeks relief from someone that is harassing or abusing another. The restraining order issued by the Probate & Family Court prohibits the Parties from the following:
1. Neither party shall sell, transfer, encumber, conceal, assign, remove or in any way dispose of any property, real or personal, belonging to or acquired by, either party, except: (a) as required for reasonable expenses of living; (b) in the ordinary and usual course of business; (c) in the ordinary and usual course of investing; (d) for payment of reasonable attorney's fees and costs in connection with the action; (e) written agreement of both parties; or (f) by Order of the Court.
2. Neither party shall incur any further debts that would burden the credit of the other party, including but not limited to further borrowing against any credit line secured by the marital residence or unreasonably using credit cards or cash advances against credit or bank cards;
3. Neither party shall directly or indirectly change the beneficiary of any life insurance policy, pension or retirement plan, or other investment account, except with the written consent of the other party or by Order of the Court.
4. Neither party shall directly or indirectly cause the other party ot the minor children to be removed from coverage under an existing insurance policy, including medical, dental, life, automobile, and disability insurance. The parties shall maintain all insurance coverage in full force and effect.
The restraining order issued by the Probate & Family Court becomes effective with regard to the Plaintiff when he or she files the Complaint for Divorce and becomes effective with regard to the Defendant upon service of the Summons and Complaint or any other acceptance of service by the Defendant. Stages of the Divorce Process - Answering the Complaint for Divorce Once served with a Complaint for Divorce, the Defendant must respond to the petition in a normal document known as an Answer. The Defendant may also want to allege that the Plaintiff was at fault as well. To do so the Defendant must add a Counterclaim as part of the Answer. The Defendant’s Answer must be filed with the Probate & Family Court and a copy must be mailed to the Plaintiff or his or her attorney. Stages of the Divorce Process - Parent Education Course If you are getting divorced and there are children born of the marriage that are still minors, you and your spouse will both be required to attend and complete the court mandated Parent Education Course. Once completed, the court certificates are filed with the Court. Many judges will not approve or finalize a divorce until this requirement has been met. Stages of the Divorce Process - Temporary Orders Once the Complaint for Divorce has been filed, either party may file a Motion for Temporary Orders seeking temporary relief from the Court to address a particular issue, need, or problem. Typically, these motions address things like custody of the child(ren), child support, spousal support, insurance coverage, a visitation schedule, a chedule for any upcoming holidays, etc.
The Party filing the Motion schedules a hearing in accordance with the Court’s calendar and all Parties and attorneys are expected to attend the hearing. Typically, at the hearing, the Parties will have a chance to negotiate an agreement that addresses the immediate issues that have been presented to the Court. Such an agreement is called a Stipulation. Depending on the circumstances, a Family Service Officer may be assigned to mediate your case to see if they can help get the Parties to agree on the terms of a Stipulation.
If the Parties cannot agree to the terms of a Stipulation, the pending Motion will be presented to the Judge at a hearing later that morning or afternoon, depending on how busy the Judge is. At that time, everyone will have there opportunity to state their case and make their arguments to the Judge. Often times the Judge will make a determination as to how he or she is going to rule on the Motion. However, sometimes the Judge will “take the matter under advisement”. This means that the Judge wants some additional time to review the case and think about things before he or she issues a ruling on the Motion.
Whether the Parties sign a Stipulation, or the Judge rules on the Motion directly, those temporary orders that are put in place are in fact a Court Order and must be followed. The temporary orders may be changed down the road, or altered by the terms in your final divorce agreement, but until modified by the court, all temporary orders by be followed. Stages of the Divorce Process - Mandatory Self Disclosure and Discovery The Massachusetts Rules of Domestic Relations Procedure, Supplemental Rule 410 requires the Parties to exchange certain documents within 45 days, This process is called Mandatory Self Disclosure. The Rule requires that each party shall deliver to the other within 45 days from the date of service of the summons the following documents:
1. The parties' federal and state income tax returns and schedules for the past three (3) years and any non-public, limited partnership and privately held corporate returns for any entity in which either party has an interest together with all supporting documentation for returns, including but not limited to W-2s, 1099s, 1098s, K-1s, Schedules C and Schedules E.
2. Statements for the past three (3) years for all bank accounts held in the name of either party individually or jointly, or in the name of another person for the benefit of either party, or held by either party for the benefit of the parties' minor child(ren).
3. The four (4) most recent pay stubs from each employer for whom the party worked.
4. Documentation regarding the cost and nature of available health insurance coverage.
5. Statements for the past three (3) years for any securities, stocks, bonds, notes or obligations, certificates of deposit owned or held by either party or held by either party for the benefit of the parties' minor child(ren), 401K statements, IRA statements, and pension plan statements for all accounts listed on the 401 financial statement.
6. Copies of any loan or mortgage applications made, prepared or submitted by either party within the last three (3) years prior to the filing of the complaint for divorce.
7. Copies of any financial statement and/or statement of assets and liabilities prepared by either party within the last three (3) years prior to the filing of the complaint for divorce.
While the Mandatory Self Disclosure Rule requires the initial exchange of information, Discovery is simply another process used for information gathering. During the course of your divorce, we may want to find out more information about a particular aspect of your divorce. Whether used to verify some information or to seek out additional information, Discovery is the umbrella term used for various legal tools such as the following:
Interrogatories: Each Party to a divorce is entitled to ask detailed written questions to their spouse, and obtain answers in writing. This often is done where there is some question about whether the financial statement or mandatory disclosure is accurate or complete.
Request for Documents: Similar to Interrogatories, this Discovery tool allows Parties to request various documents from their spouse. This is often done to verify or double check information that was given by the other Party.
Deposition: Each Party to a divorce is entitled to ask questions under oath in the presence of a stenographer regarding details of the Parties financial circumstances and financial history. Included in the notice of deposition can be detailed lists of documents that are required to be brought to the Deposition.
Subpoenas: Subpoenas can be issued to banks, financial institutions, employers, and any other person or institution which has financial records that are relevant to the financial circumstances of the parties to a divorce.
Actuaries: Actuaries are often employed to put a value on pensions and other employment related retirement benefits.
Appraisers: Certified appraisers are often hired to value real estate and any business that is owned by either Party in a divorce. Collectibles are also appraised if they have significant value.
Private Investigators: If there are serious questions about someone’s truthfulness it is often useful to hire investigators to attempt to verify someone’s work habits, lifestyle and other aspects of their personal life which might have an impact on their financial situation.
All in all, the process of Discovery allows the Parties to ensure that they can enter into a Divorce Agreement fully and accurately informed regarding all aspects of the marital estate. Stages of the Divorce Process - Case Management, Four-Way Conferences and Pretrial Conferences If neither Party has brought forward a Motion or there are no Temporary Orders in place, the Court will schedule a Case Management Conference. The date of such a conference would likely be scheduled for two to four months after the Return of Service has been filed with the Court. This of course depends on how busy or backed up the Court and your judge is. The Purpose of a Case Management Conference is for the attorneys to agree upon a reasonable time needed to complete discovery in the case based upon the issues involved in your specific case.
After a Case Management Conference has been held, or once there are Temporary Orders in place, the Court will schedule a Pretrial Conference. This is an important event as the judge will actively participate on this date. You should be aware that the Court requires that all Parties and attorneys meet for a Four-Way Conference prior to appearing in Court for a Pretrial Conference. This is a meeting held at either our office or the office of your spouse’s lawyer (if your spouse has a lawyer) and is an attempt to reach a settlement of your case.
The purpose of a Pretrial Conference is for the judge to find out what contested issues remain, basically what are the Parties still fighting over. At the hearing, the judge will read the memorandums submitted by the Parties through their lawyers and the judge will listen to some arguments as well. Depending on the judge, somethimes these discussions are held off the record in the judge’s chambers. Regardless, afterwards, the judge will tell the Parties what he or she would likely do if the matter went to trial and the evidence and testimony presented was similar to what was presented that day. This is often very useful in getting a final agreement in place. Stages of the Divorce Process - Trial If the Parties cannot agree on a comprehensive divorce agreement, any and all contested issues will proceed to a trial before a judge. There are no jury trials in Probate & Family Court.
The judge will hear all the evidence and then decide on how to address the remaining issues. Once decided, the judge will issue an order and his or her decision is final.
Because of the unpredicatbility of judges, we often urge our clients to take every step available to reach an agreement. We believe that it is better to control the outcome than to leave it up to the judge. Of course, there are certain situations that do warrant taking a divorce case to trial, but they are truly few and far between.