say "if" because the court would prefer
the parties to negotiate their own settlement
rather than have the court impose its own decisions
on the parties. Consequently, while divorce
proceedings may well need to be instituted,
this does not mean that your case will necessarily
end up in a contested hearing (i.e. trial).
What the court process tends to do, in the majority
of cases, is put pressure on both parties to
be reasonable and to leave out the emotional
content in their deliberations and negotiations.
If both parties to a divorce are represented
by attorneys, then the mounting legal fees are
also likely to influence the parties to "work
it themselves". Some lawyers also have
a tendency to unnecessarily "inflame" the situation, which is not helpful. To understand
better what we mean, check out Divorce
and then return to this page.
CAN YOU COMMENCE DIVORCE PROCEEDINGS:
different countries and States have different
Divorce Law rules. However, it usually doesn't
matter where you got married. Rather, to establish
jurisdiction you normally need to satisfy some
residency, domicile or citizenship before you
can file divorce proceedings. In the United
States, the situation varies from one State
to another although many States require that
you must have resided in that State for about
6 months immediately before instituting the
divorce proceedings. In Australia on the other
hand, provided you are an Australian citizen
or have been resident or domiciled in Australia
for the last 12 months, you can file for divorce
in any registry of the Family Court of
Australia or even in any registry of the Magistrates
Court. Unlike the United States, divorce and
family law is governed by a Federal Act rather
than State Acts, a much simpler and straightforward
we are going to concentrate on the United States.
The benefit of you initiating the proceedings
is that you get to choose the jurisdiction.
vary but generally speaking, the person filing
for divorce or a legal separation does so by
filing and serving a Summons and Petition for
Divorce or Legal Separation. The Petition has
two parts. The first section of the Petition
sets out basic details such as the identities
and residential addresses of each party, the
date and place of marriage, the names and dates
of birth of any children of the marriage, the
matrimonial assets and so on. The second section
of the Petition sets out the orders or relief
being sought by the person filing the document
(eg. sole custody).
some instances, a party may also need to seek
urgent orders (eg. where you are very concerned
that the other spouse is or will dispose of
matrimonial assets). Be sure to get legal advice
if there are immediate matters that need to
be urgently addressed whether they involve domestic
violence, property or maintenance.
speaking, the other party to the proceedings
must be served personally. Usually, the
person serving the documents CANNOT be the petitioning
Applicant. In other words, you have to get a
private process server or someone other than
yourself, to personally serve the papers on
FILED IN REPONSE BY OTHER PARTY:
the United States, the document filed in response
to the initiating proceeding is normally an
Answer and Counter Petition. The time limit
for filing this document is usually 30 days
in the absence of any extension or waiver being
granted by the other side.
the length of time before the proceedings will
come before the court for hearing, it is often
necessary to seek interim orders to deal with
issues during the intervening period. These
might be matters such as domestic violence restraining
orders, sole occupancy of the former matrimonial
home, interim custody, access and maintenance
orders (including perhaps an order that your
spouse meet the house repayments) and injunctions
to prevent a party from disposing of or otherwise
dealing with matrimonial property. A hearing
of this type is sometimes referred to as Interim
or Temporary Hearing or in some jurisdictions,
a Pendente Lite hearing. To proceed with such
an application, you would usually file a Motion
or Application along with a supporting Affidavit.
outcome of interim applications can be extremely
important when it comes to custody as there
is a reluctance by the courts to disturb the
existing status quo. For eample, if you have
had interim custody of the children for the
preceding 12 months, this is likely to go in
your favour if and when it comes to the final
COUNSELLING, CO-PARENTING CLASSES AND CASE REVIEWS:
most jurisdictions, the court will insist that
the parties attend counselling, mediation and
where children are involved, co-parenting classes.
The reason for counselling and mediation is
to try and create an environment where the parties
can hopefully negotiate their own settlement.
The success rate of mediations is quite high
and this in turn, reduces the number of cases
the court has to deal with at a full hearing.
In some jurisdictions, the parties must attend
mediation or counselling BEFORE proceedings
are actually instituted. One exception to this
is where one party has been the victim of domestic
party can normally have their attorney present
at mediation. The mediation is held on a "without
prejudice" basis which means that what
is said at the mediation or conference can generally
not be used in court. The role of the mediator
is not to stand in the shoes of the Judge but
rather, to act as a facilitator (the goal being
to try to help the parties reach agreement).
goal of requiring parties to attend co-parenting
classes is to educate the parents on how to
minimise the impact of divorce on any child
or children of the marriage. In some jurisdictions,
even the children of the marriage (over a certain
age) may be required to attend a class to teach
them skills to help them cope with divorcing
parents. This is not that widespread as many
courts are reluctant to unnecessarily involve
the children of the marriage in the court and
many jurisdictions, the court has its own Case
Management Rules so as to set down a timeline
for various steps to be done. Within these Rules
is often a requirement that a Case Review Conference
take place. In some jurisdictions this may be
called a Pre-Hearing Conference while in others
it may be referred to as a Conciliation Conference.
It is usually held in the presence of either
the Judge who has been assigned the case, or
a Court Registrar.
purpose of a Case Review Conference is to discuss
outstanding issues and to make Orders or Directions
as to the discovery of relevant documents, the
delivering and answering of interrogatories
and the allocation of a hearing date.
INTERLOCUTORY STEPS OF DISCOVERY OF DOCUMENTS
parties will normally be required to disclose
any documents in their custody, possession or
control that are relevant to the issues in the
proceedings. This is particularly so in the
case of property settlement and/or maintenance
matters. However it can apply to other matters
as well. Bank statements, wage records, property
documentation etc. are common discoverable documents.
Discovery is either done informally between
the parties or on oath by way of a sworn affidavit
some cases, it may be necessary to seek orders
for discovery on third parties. This is especially
so where your spouse may be hiding assets and/or
are written questions delivered by one party
to the other for answering on oath within a
certain time. The answers are provided in writing
by way of sworn Answers to Interrogatories.
In many jurisdictions, you either need the leave
(i.e. permission) of the court before you can
deliver interrogatories or the number of interrogatories
you can ask, as of right, may be limited in
the absence of obtaining the leave of the court.
A party may object to answering certain questions
on a number of grounds (eg. relevancy, unduly
oppressive and incrimination) but it is then
a matter for the court to decide if these objections
COURT STEPS PRIOR TO HEARING:
In order to narrow the
issues at the hearing, either party may:-
Deliver a Notice To Admit Facts or Request for
(b) Deliver a Notice To Produce Documents.
are fairly self-explanatory.
party may also take depositions by serving a
subpoena on either a party or non-party. The
purpose of a deposition is have the person give
evidence on oath about matters and/or documents
relevant to the facts of the case. It is either
held at the attorney's office or at some other
location agreed upon.
may include psychologists, psychiatrists, property
valuers, accountants/business evaluators etc.
They are usually quite expensive, both as regards
their fees for the preparation of reports as
well as for attending at the trial to give evidence
and be cross-examined.
can reach agreement at any time prior to trial.
Most people do, in which case they either enter
into a Consent Order or sign a Marital Settlement
In a lot of jurisdictions,
hearings are before a single judge while some
States have a trial by jury. In countries such
as Australia, trial by jury has long been abolished.
Of all the Family Law matters heard by the Court,
issues such as custody, visiting rights and
child support may be re-opened at a later date
if there has been a significant change in circumstances.
Please take the time to visit our sponsor - just click on the image below!