I find myself explaining this so often to clients that I have to believe that it is something that would be generally useful to everyone.
The life of litigation as it normally applies to a divorce case can be divided into three main phases: Initiation Phase, Discovery Phase, and Resolution Phase.
- Initiation Phase. This phase is where the written request is filed, requesting the court to enter an order divorcing the parties, commencing the action, and “getting the ball rolling.”
- The written request for divorce, called the “complaint” or “petition,” is drafted and filed with the court. This is called “suing somebody.” In a divorce case, the person starting the case is called the Plaintiff or Petitioner. (In Utah the terms used are “petition” and “Petitioner”, so I will use those terms here). The petition contains all the requests that the Petitioner is asking from the court in order to terminate the marriage and must include, as applicable: names of the parties; jurisdiction; marriage date; children born to the marriage; custody; parent-time (visitation); child support (including medical costs, claiming children for tax purposes, etc); division of property (real property, personal property, retirements, bank accounts, and other marital assets); division of debts; and spousal support (alimony).
- Service of the Petition with Summons. This is called “being served.” Service is accomplished in several ways: personal service by a constable or law enforcement officer, certified mail, or publication, or other ways allowable by each state’s specific rules on service. The person being served is called the Defendant or Respondent. (In Utah the term used is “Respondent”, so I will use that term here). The Summons tells the Respondent that he/she must file a written Answer to the Complaint with the court and send a copy to Petitioner or Petitioner’s attorney within a certain amount of time (usually 20 to 30 days), or a default will be entered against them. If an answer is not filed by the Respondent (rarely), the Petitioner can file for the default of Respondent, meaning that what Petitioner asked for in the petition will be granted and ordered by the court.
- Responding to the Petition. The Respondent usually files an Answer, giving her/his responses to the requests from the Petitioner’s petition. The response may also include a portion entitled “Counterclaim,” where the Respondent writes out his/her own version of a petition.
- Temporary Orders. If there are things that need to be ordered during the pendency of the divorce action (process of getting the divorce) until the final divorce terms are ordered, then one or both parties will want to seek temporary orders from the court, including such issues as temporary custody of the children, temporary financial support and temporary allocations of the marital debts, and temporary possession of the marital real and personal property. Temporary orders sought may also include protective or restraining orders where appropriate.
- Setting a schedule for the case. This process is usually done by way of something called a “Scheduling Order.” This sets out the schedule for when certain deadlines have to be met during the next phase to get ready for case resolution
- Discovery Phase. This phase is essentially where all the facts are gathered together in order to move to the next phase – to “discover” all facts relevant to the case. The Rules of Civil Procedure are geared such that there are no trials by ambush. All relevant, known information must be shared or it will not be allowed to prove a party’s case. There should be no “Perry Mason” moments. There are several methods that the court rules allow for obtaining facts. The common methods for discovery include:
- Interrogatories. This is a fancy legal term for “written questions.” These must be answered in writing and then sworn before a notary. The party answering must usually return the answers within 30 days. If a party refuses to answer the questions fully and properly, a court may order that party’s pleadings (court papers) stricken (ignored) and the other party gets what they want for the whole case. This request will usually include a request to identify any witnesses
- Request for Admissions. This discovery method requires a party to either admit or deny certain allegations by the person sending the request document. The party answering must usually return the answers within 30 days. If a party refuses to respond timely to the request, a court may order that all the requests are deemed admitted.
- Request for Production of Documents. This discovery method requires a party to produce any documents requested in the possession of the party to the person sending the request. The party answering must usually fulfill the request within 30 days. If a party refuses to respond timely to the request, a court may order that party’s pleadings (court papers) stricken (ignored) and the other party gets what they want for the whole case.
- Witnesses. Parties will gather their witnesses with information relevant to prove their case. Parties generally are witnesses in their own case, as they know their facts and experienced the facts as they occurred.
- Depositions. This is where a person is ordered (via subpoena) to appear at a certain time and place to give sworn testimony before a certified court reporter to answer questions by one or both of the lawyers. This method is not often used by family law parties because of the great expense for court reporters, transcript costs and lawyers’ preparation and appearance.
- Resolution Phase. There are many ways to resolve as case, including:
- Negotiation. Parties and/or lawyers will generally spend some time discussing the relative merits of their cases to see if there is immediate common ground for resolving the case.
- Motion for Summary Judgment. This tool is where one or both sides file a motion with the court requesting that it rule without a hearing. In order for a motion for summary judgment to be valid, the facts must not be disputed and it is only a question of applying the law to the facts of the case. Family law cases are very fact intensive, and the facts are usually contested, so this tool is generally not used.
- Mediation. This is a completely voluntary process where the parties have an opportunity to have a facilitated discussion about resolving their case. There are many kinds of mediators that conduct many types of mediation, and I won’t try to cover those here. In many states, attending at least one mediation is required before the parties can go back to court. The benefit of mediation is that the parties get to determine the outcome and know what the final result will be, rather than risking the expense and possible outcome that a third party (arbitrator or judge) will make.
- Arbitration. Arbitration may be binding or non-binding. Many times this is called “rent-a-judge,” where the parties agree that a neutral third party will decide their case. The benefit of arbitration is that it is usually a less expensive process and quicker to get into than a state court.
- Trial. The parties simply cannot reach agreement and are so far apart in their positions that they require the intervention of a judge, who has the authority to decide what the parties cannot or will not decide themselves. It only takes one party to be unreasonable and force matters to trial. The judge takes evidence, makes the decision, and enters the divorce order, or Decree of Divorce. This order binds the parties, and the case is resolved. My observations in this category show that I personally disfavor going to trial, though I am very willing to go to trial if the opposing party simply will not come to the table for a reasonable settlement. About 96% of cases are resolved short of trial.
- Post-Divorce follow-up. Usually there are documents to be signed, and property to be transferred. If there was a division of retirement(s), then Qualified Domestic Relations Order(s) must be prepared, filed, signed by the court and submitted and approved by the respective qualified plan administrator(s).
Please comment, add, refute, clarify or inquire regarding this posting if you are so inclined. I would love for this to convert to a helpful dialogue and resource.