Stages of the Contested Divorce Process:
In a contested divorce there are several steps that must be taken the following is a brief overview of the process.
1. Complaint for Divorce: A Complaint for Divorce must be filed with a certified Copy of Marriage Certificate, which can be obtained from city/town hall where the marriage license was issued. When filing for a divorce based on the irretrievable breakdown of the marriage the testimony need only reflect irreconcilable differences between the spouses. However, when filing on grounds of irretrievable breakdown there is a six month waiting period from the date of filing until the case can be marked for trial.
Once the court processed the Complaint for Divorce they will assign a docket number to the case. A summons is sent to the attorney for the Plaintiff or the Plaintiff who then serves the Defendant with a copy of the Complaint. Once the Defendant is served with the complaint and summons, the defendant has 20 days to respond with an answer or counterclaim for divorce.
2. Parenting Course: All parents with minor children involved in a divorce are required to attend an approved Parent Education Program. Parents must register to attend the program within sixty days of the date of service of the Complaint for Divorce and must attend the next available class. The parents are not required to attend together. Attendance is mandatory for parties to divorce actions but may also be required for parents in any case involving visitation, custody, or support of minor children. A list of approved programs is available at the registry of probate or online at:
3. Mandatory Self Disclosure: Rule 410 of the Supplemental Rules of the Probate Court requires that both parties have to exchange documents within 45 days of the service of the summons. Except as otherwise agreed by the parties or ordered by the court the following documents should be produced:
(a) 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 tax returns, including but not limited to W-2’s, 1099’s, 1098’s, K-1, Schedule C and Schedule E.
(b) The four (4) most recent pay stubs from each employer for whom the party worked.
(c) Documentation regarding the cost and nature of available health insurance coverage.
(d) 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).
(e) 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.
(f) 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.
(g) 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.
The parties shall supplement all documents as changes occur during the case. If either party does not have some of the documents required or is unable to obtain them in a within the 45 days, they must state in writing those documents which are not available, the reasons they are not available, and what efforts have been made to obtain them.
4. Financial Statement: Rule 401 of the Supplemental Rules of the Probate and Family Court require that each party automatically exchange and file with the court financial statements. The exchange is required within 45 days from the date the Defendant is served. There is a long and a short form financial statement. If your income equals or exceeds $75,000.00 per year you must complete a long form financial statement. However if your income is less than $75,000.00 per year you must complete a short form financial statement. The $75,000.00 threshold pertains to gross income which is not limited to salary or wages. Gross income includes all categories of income such as:
- self-employment income,
- overtime or bonuses,
- tips or commissions,
- disability, social security, or welfare,
- pensions or retirement funds,
- rental property income,
- support payments,
- monetary contributions from household/family members, and
5. Temporary Orders: Once a Complaint for Divorce is filed with the court six months or more can elapse before the divorce is finalized. During this time Motions may be filed by the parties for temporary orders. A motion is a request by a party that the Court make an order regarding some issue. The order will remain in effect until the end of the case unless modified by an agreement of the parties or further order of the judge. Temporary orders generally address the following issues:
- Who has legal and/or physical custody of the minor children;
- How much child support and alimony, if appropriate, must be paid;
- Visitation schedule for the parents and children;
- Maintenance of health, dental, vision and life and disability insurance;
- Which spouse will occupy the marital residence; and
- How the parties will pay for a child’s extracurricular and/or educational expenses.
When temporary orders work to the satisfaction of both parties before the divorce is finalized they can act to set a precedent for final resolution of issues. There is no requirement that either party file motions for temporary orders when they are able to agree on these issues.
6. Discovery: As well as the mandatory self-disclosure required by rule 410 and the probate court financial statement required by rule 401 there are other forms of document and information exchange that will occur and this is generally known as discovery. Discoverable information includes any relevant information that is not privileged and information is considered discoverable if there is a possibility that it might be relevant to the subject matter of the action. Discovery will include the following:
- Interrogatories – written questions which the recipient must answer, interrogatories are generally used for the discovery of basic factual information.
- Request for Production of Documents – a request from one party to the other for the production of designated documents. The documents sought must be in the possession, custody, or control of the party upon whom the request is served. The party must respond to the request within thirty days after service and should produce documents as they are kept in the course of business or organize and label them to correspond with the request.
- Depositions – a meeting in which the party or a witness is questioned under oath before a stenographer who transcribes the questions and answers. Any person may be deposed if he or she has information that is relevant or is likely to lead to admissible evidence.
These forms of discovery are optional and generally are used to obtain additional information not provided by rule 410 and the financial statement required by rule 401. The purpose is to guarantee that both parties have complete disclosure of all of the other party’s information in order to aid negotiations.
7. Pretrial Conference: At a pretrial conference the parties and counsel appear before the judge to discuss the pending divorce and establish guidelines for its progression to trial. This is generally scheduled once discovery has been complete. The purpose is to simplify the issues, consider the necessity of amending pleadings, obtain admissions of fact and documents, limit the number of witnesses, and explore the possibility of settlement. Many cases are resolved at or before the pretrial conference; however, it may be necessary for the matter to proceed to trial rather than settlement.
8. Trial: If the parties cannot reach an agreement the divorce will proceed to trial. This is the last step in the divorce process. Each party litigant will present their side of the story and the judge will rule on each issue.