You or your partner have filed for a divorce, now what?
There are several different scenarios that can play out when you’re involved in a divorce. Of course, the first major question is, is it a contested or uncontested divorce?
Default/Uncontested Process
Once a person files for divorce or separation (petitioner), it is then up to the other spouse or domestic partner (respondent), to decide how they want to handle the case. If you do not respond to your spouse or partner’s petition for divorce/separation or you file a response but reach an agreement, your case will be considered either a “default” or an “uncontested case.” In a “true default” case (no response) you are giving up your right to have any say in your divorce or legal separation case. Before you choose this option, be sure you read the petition very carefully because the judge will likely make final orders based on the petitioner’s paperwork.
Whether you choose to respond or not to the petition, you can both agree to end your marriage or domestic partnership and also come to an agreement about how to divide your property and your debt, whether anyone will pay the other spousal or partner support, and what child support, custody and visitation orders you will need, if you have children together. This is called a “default with an agreement”. The terms of the agreement is put in writing and notarized, sometimes called “marital settlement agreement”. The financial disclosure forms are to be filled out as well as forms to enter the Judgment. All forms are then given to the court clerk to process and then are given to the Judge to review. If the forms are filled out correctly, the Judge will sign the Judgment without either named spouse or domestic partner having to appear in court. The clerk will then mail you the Judgment and Notice of Entry of Judgment.
Contested Case
If your spouse or domestic partner filed a Response and you do not have a written agreement about your divorce or separation, this is known as a “contested” case. The case can be contested because you do not agree on how to divide your property and your debt, or because you do not agree about custody and visitation, child support, or spousal/partner support. You may agree on some issues but not others. If this is the case, you can write up your agreement on the issues you worked out and leave the other issues for a judge to decide. If you are in a contested case, you may want to try mediation to resolve your case yourselves and not leave the decision up to a judge.
When there are issues you cannot resolve by agreement, one of you has to file and serve a form to set a trial date. Also, most courts usually require the parties to attend a settlement conference before the trial. Sometimes, a case is contested because the spouses or domestic partners cannot agree on ALL issues, though they may agree on some. When this happens, the parties can ask for a separate trial on the issues they cannot agree on so they can resolve those and then finalize the entire case. This is sometimes call “bifurcation” which means “to separate the legal issues in a case.”
Common Problems in Completing Your Divorce or Separation
Sometimes your forms will be returned with a request that you schedule a court hearing. This usually means that you are asking for something that the judge needs more information about. If the court requests that you schedule a hearing, you may want to contact a lawyer, family law facilitator, or self-help center. You may need to give notice of the hearing to your spouse or domestic partner. When you attend your hearing, be sure to bring anything the clerk’s letter asks for, as well as your copies of all the forms you have prepared or received for your case.
The court will probably reject your judgment papers if it includes property and debts or other issues that were not listed in the Petition or Property Declaration, unless you wrote on those forms that you did not know the value of those assets and that the debts were unknown at the time you filed the forms or the Judge thinks the Agreement appears to be too one-sided and unevenly distributed. Other common reasons for a hearing to be scheduled is that your forms do not give enough information about your finances or parenting plan to calculate support orders; you have a case with the local child support agency and you did NOT get approval for the proposed child support payments from the local child support agency; the judge does not have proof of service for the Summons and Petition; or you were missing a required court form. Be sure to keep a copy of all your forms in a safe place because you may need them in the future.
It is important to remember that every divorce is different and divorce is an issue of great complexity. If you’re going through a divorce, do not hesitate to call us. There are options for you to settle out of court through mediation. We can provide you with all of the resources you need. Contact us at 530-217-3520 or visit our website http://www.alharveylaw.com/Contact_Us.html.
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