Family Law, Divorce, and Child Custody Attorney

What you should expect in a family law divorce case

The divorce begins with one party filing the Dissolution action (a dissolution is the cancellation or termination of a contract, in this case, a marriage). Filing does require a filing fee and many documents that must be completed correctly.

So why go through the work of being the one to file the Dissolution action? If you are the Petitioner/Moving party you are able to argue first, and have the last word in the Court room. Many cases hinge on which party get to the filing stage first. The downside is the filing fee and many times needing council from an attorney to file correctly.

Once filed, the next step is serving the opposing party (husband/wife/partner/etc) which must be done by someone other than yourself, and they must be over the age of 18 years. Upon Service, an Affidavit of Service must be signed showing what documents were served and to whom. From the day of being served, most counties require the couple wait a minimum of 92 days before they can proceed to the next step in the divorce process. This also is under the assumption that within the 92 days both you and your partner come to an agreement. This means all Parenting issues, Child Support/Custody, Division of Assets and Liabilities.

If in fact all paperwork is signed off on, only one side need present to the Court Commissioner, giving a short testimony, and the case can be final and closed. In the event that there are children, the presenting party to the court must have taken short class called the “for Kids Sake Seminar”.

What typically causes Disputes and prolonged divorce cases?

Child Custody disputes are the most common issue that comes up. Specifically who will be the primary parent and who will have visitation. This then affects the courts decisions on Child Support Calculations and transfer payments. In the case where there is a contested issue about Visitation and Custody - The Court routinely appoints a GAL to represent the Child/children to advise the Court on what would be the parenting plan in the Child’s best interest.

In Divorce and Dissolution cases where there are property issues, the first step is to find out what property is held by all parties. This is done by discovery, normally called interrogatories, in which a series of questions and requests are made for tax and financial documents that have to be sworn to under penalty of perjury. Once all the property is ascertained, the valuation of the property/properties is the next step. This can be done by an agreement or by appraisal via experts. Both Party’s then can work towards an equitable division of all assets and liabilities.

In the event that each party cannot reach an agreement, the case must then go to Trial.

What most people do not understand about “going to Trial” is that it is Live in front of an elected Judge. Both party’s must present Their evidence to the Court in the form of Testimony and Exhibits. The Rules of Evidence apply in most cases, so you cannot just hand up documents (These rules determine what evidence must or must not be considered by the trier of fact in reaching its decision). Normally under Evidence Rule 904 you can submit your documents at least 30 days prior to the Trial to give time for the otehr opposing side to object to or they can be simply admitted by the Judge. If Objected, you must Subpoena the original maker of the Documents to attend your trial and certify authenticity.

A Major misconception people have is that the Judge will have read your file and know anything about your case prior to you standing before them. They do not do that at all. Nobody reads the Court file unless you make a Motion and request them to do so in advance. A Judge will not do that in place of the Trial either. They must make a ruling based only on what admissible evidence is presented at trial. In most cases the party’s are used to identify and enter documents for the Judge to consider only. Once the Judge has issued a ruling the parties must write it up and both sign it if they agree it was what the Judge said. If you still do not agree another schedule must then be made to have a Presentation before the Judge to decide the language of the Judge’s ruling to finish the divorce under their directive by law.

As with all legal issues, divorce can be painful and is the closest to home. If you believe any of these concerns might arise we highly suggest receiving legal representation by an Attorney. At Brian Duce Attorney at Law we offer a Free phone consultation to find the best recommendations for your potential case specifically.

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