In every divorce proceeding somebody has to be the bad guy and actually file the Petition for Divorce. This party is identified as the “Petitioner” for the rest of the case. The other party will be identified as the “Respondent”. There are several other documents that must be filed with the Petition as well (Summons, Preliminary Injunction, Notice to Creditors, Notice re: Health Insurance, Cover page). If there are minor children involved, a Notice to Attend Parent Information Course as well as an Affidavit re: Minor Children must also be filed.
When the initial documents are filed, the clerk will keep the originals. You should bring two additional copies with you. The clerk will stamp and return those to you. One copy is for your records, the other is to serve on your spouse.
Service of process can be accomplished in one of two ways: 1. By hiring a private process server to han deliver the documents to your spouse. 2. By giving the documents directly to your spouse and having him/her sign and notarize an Acceptance of Service that states that they have received the papers that must be filed with the Court.
The initial Petition for Dissolution (Divorce) can be drafted in one of two ways. You can list specific things that you are requesting (eg. Petitioner should be awarded the 2010 Chevy Tahoe, the debt associated with the Chase Credit card ending in 0545, the 26 foot Bayliner ski boat, etc.) Or it can be drafted very generically (eg. The parties have acquired community property and debt that should be divided equitably). This is important in that if you don’t think your spouse will fight the divorce, you should be as specific as possible about what you want in your Petition including Custody, Parenting Time, Property and Debt Division, Spousal Maintenance (Alimony) and Child Support. If you don’t set these items out specifically, and you go to a default hearing, you may not receive them as the Court wants to ensure that the other party had notice of exactly what you were asking for.
If your spouse does contest the divorce, he/she must file a “Response” to the Petition for Dissolution. This again is just an agreement or disagreement to those items listed in the Petition.
Once a Response is filed, now you’re in litigation. Disclosure of all exhibits (documents) and witnesses must be provided to the other party no less than 30 days before your trial. Additionally, the rules of procedure allow you to request certain information (“Discovery”) if the other party does not provide it voluntarily (eg. bank records, retirement account information; proposals for parenting time; employment benefits information, etc.) All of these things must be done prior to trial.
You will likely end up at some kind of mediation. This is your chance to meet with a neutral party to explain your position and the reasons why you believe you are correct. The mediator will in turn tell you the strengths and weaknesses of your position as well as the risks involved in taking the matter to trial and possible outcomes. You may reach a full or partial agreement at this mediation. If you reach an agreement on only part of the issues (eg. property and debt are settled but custody and parenting time and child support are not) you will have to present evidence only on those remaining issues at trial. If you reach a full agreement, you are done. Someone should memorialize the agreements in a “Consent Decree” and if children are involved a “Parenting Plan”.
Trial is your ONE chance to present your evidence and plead your case. There are no do-overs for this. You should have a copy of all of your exhibits you intend to use at trial hand delivered to the Judge no less than five business days before trial. You should also submit a “PreTrial Statement” for the Judge to read before the trial in which you list the remaining issues, your position on each of those, your witness and your exhibits. This is crucial to inform the Court of what your arguments are before you even start trial. Don’t waste the opportunity. A Pretrial Statement should be concise and clear and relevant to the issue you are arguing (If your arguing for/against spousal maintenance, do not argue about what a terrible person the other party is. Spousal Maintenance is about money and you should review the statutory factors for spousal maintenance and limit your argument to those factors).
If you have any questions or concerns please do not hesitate to contact the attorneys at Trullinger & Wenk at 623-536-5500.