Family Law: Divorce Process
The Divorce Process
The time of a divorce can be stressful and difficult. In addition, there is a great deal of misinformation surrounding it. The best way to cope successfully is to be well informed. This brief outline of the divorce process is meant to begin to answer some of your questions. However, remember that each case is unique. You must ask your attorney how the law specifically applies to you.
The divorce process begins long before court action is begun. It begins when the marriage is so strained that one of the parties starts to think about a divorce. It is a time to become fully aware of the financial aspects of the marriage. This investigation can require careful and patient probing. In addition, it is a time to ensure the protection of your own assets. Your attorney can best advise you of the dos and don’ts.
The actual case begins with filing a Petition for Dissolution of Marriage with the court. This document asks the court to grant you a divorce and for such other relief as you request. This other relief may include custody, child support, spousal support, visitation and a division of property. You no longer need to prove grounds to get the divorce since Oregon is a no-fault divorce state. This means bad conduct by your spouse is rarely an important issue except as it may relate to a custody decision. The Petition, a Summons and a number of notices must be served (or given to your spouse) by the sheriff or some other adult who is not involved in the divorce. Once your spouse receives the Petition, he or she has 30 days to file a document called a Response with the court. If your spouse doesn’t do anything, the court can decide the case without taking his or her desires into consideration (this is an uncontested divorce). Should your spouse file first and you receive a Petition with a Summons, it’s important that you take legal action within 30 days. If you don’t, the court can decide the case without taking your desires into consideration.
Both parties are restrained from disposing of assets – once your spouse side has been notified by being served with a copy of the required notice, he or she is not allowed to dispose of assets.
There are a number of other issues that may require temporary measures pending the final hearing. These can include the temporary custody of your children, temporary child and spousal support, allowing you to use property such as an automobile, and restraining orders to protect you from abuse. These temporary measures are requested by filing a motion with the court. A hearing before a judge is required. At the hearing, your attorney will present evidence which supports your side. You will probably be called upon to testify before the judge as to the facts as you know them. Once the judge makes a decision, he will enter a court order. This document requires both people to comply with the directions of the court. Should either person fail to follow the court order, he or she may be forced to comply by a finding of contempt of court.
While The Case Is Pending
After the case is filed and before trial, both attorneys engage in discovery. This is a process in which they attempt to learn information about the other party’s assets, liabilities, income, financial needs and other related information. The requirement that you provide copies of financial and other documents to the other party is part of discovery. Another procedure used to obtain information is a deposition. In a deposition the attorney questions a party under oath while the proceeding is recorded, either by a court reporter or a tape recorder. It’s important to be prepared for the deposition and to discuss any questionable areas with your attorney before your deposition since the statements you give can later be used against you at trial.
Prior to the trial, the attorneys attempt to negotiate a settlement between the parties. You have the final say as to what you will accept. If an agreement is reached, the understanding may be written out in a settlement agreement or in a stipulated judgment of dissolution. This document will spell out the complete terms of your divorce. After you have read it, and fully understand it, you will be asked to sign it. It will then be presented to the court for approval.
The final hearing or trial can be held no sooner then 90 days from the date the Petition is served on the non-filing spouse. If you and your spouse are unable to reach an agreement, the case will go to trial. Although the trial date will have been set, you must be prepared for delays. Many times the date will be postponed at the last minute. Once the trial date does arrive, there still can be delays. The case may not start on time.
Also, before the trial actually begins there may be last minute discussions between the attorneys and the judge. The judge may suggest a compromise. Your attorney will tell you what was discussed and may suggest alternatives. If an agreement can’t be reached, the trial will start. It can last from a few hours to a number of days.
The purpose of the trial will be to resolve any undecided issues. These may include who has custody of the children, how much child or spousal support will be paid and how property will be divided. There are statutes and prior cases which the court follows; however, each case is unique. Your attorney will advise you as to what you can reasonably expect, but your attorney cannot guarantee you that is what you will get.
The trial will be the culmination of a long process. It will also be the start of a new beginning. Many people who have gone through the divorce experience have found new insight and growth within themselves.