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Traditional Divorce

Although this website is devoted to promoting Collaborative Law, I recognize that some people (perhaps their spouse refuses to go that route) will not qualify for that process. Therefore an explanation of the traditional process may be appropriate. Although this will try to explain how typical litigation of Dissolution of Marriage (divorce) cases proceed, please understand that each case is unique. Therefore I ask you to see this as an overview and to discuss any aspect of your case which you feel is unique and requires additional discovery or highlighting with your counsel.

Starting the Case

There is no set means of initiating any divorce. In some instances you may just file a Petition for Dissolution of Marriage, have the other party served (handed the papers) by a sheriff or private process server and then they are required within twenty days to take some action with a written filing, Motion or pleading in the Court system. If they do not, then we may default them which in some instances means they cannot defend their case. However in Dissolution case, the Court is more inclined to permit some testimony at trial from a defaulted party. Sometimes you may wish to mail the Petition and a Marital settlement Agreement (MSA) to them and ask they respond to me or sign an Acceptance of Service thus avoiding having the sheriff hand them the paperwork which can come at an awkward or inconvenient time. We do not control when they are found or where so receiving the papers is out of our control under regular service. The MSA is merely a contract between spouses. It can include child issues, alimony if appropriate and the equitable distribution of assets and liabilities. This is discussed below.

If they do respond to the Court either after service of the papers or through signing an Acceptance, then the case proceeds forward. This too can take many different tracks. Normally the parties are required to provide certain information known as “mandatory disclosure” or Rule 12.285. I attached a copy of the Certificate of Compliance with Mandatory Disclosure which must be filed within 45 days of service of the Petition or our Answer. The documents listed in the section entitled “For Initial, Supplemental and Permanent Financial Relief” must be copied and served on the other party within this 45 day time frame. I however ask that my clients provide all the applicable documentation to my office within 2 weeks so that my office may have time to review it and arrange to forward it to the other party. It is not sufficient to say the other party has this information and you are under a duty to get it within the time frame given. I also advise my clients to provide both a copy for me and one for the other side as my office charges 20 cents per page for copies. As always we try to suggest that clients take on as much as they can thus saving them money in what can be a very expensive process.

Settling

Much of this may be inapplicable to your case if it appears a Marital Settlement Agreement (MSA) is forthcoming. Hopefully either through assistance with their attorneys or through mediation, the parties can reach settlement on all issues or narrow down the issues that will require the Court to decide. As always, should the parties be able to agree on such simple things as what personal property will be retained by each, then this gets written down and signed by all parties. The more the parties can agree on the less the attorneys and Court must assist with and the less money they will expend. Although the statute says the party with the better ability to pay shall pay for the other spouse’s attorneys fees and costs, let’s all agree that it will probably come out of the marital Estate which means each party pays so holding down costs is important to both sides. If an attorney tells you that the other side will pay then you should question from where? There is only so much of the marital monies and assets that can be used for this purpose. The Court will also penalize any party that runs up fees and costs. So failing to provide the required or requested documents or materials will not help you. Everybody wants their case handled quickly efficiently and at less cost. They control some of this and you would be surprised how few get materials back to their attorney on a timely basis.

Marital vs. Non-marital Assets/Liabilities

They can also identify what are marital and what are non-marital assets and liabilities (I will use the term assets but it shall apply to liabilities as well). The statute defines marital assets as those assets gained through marital effort(s). That does not require joint effort but could be either party’s work efforts. Thus retirement benefits gained during the marriage and all appreciation thereon would be marital whether earned by one or the other spouse. Thus if one spouse has been a stay at home parent, they are still entitled to an interest in marital retirement benefits from the working spouse. An example of non-marital assets are those gained not through marital efforts. Thus gifts from third parties (gifts between spouses are normally marital and subject to division by the Court) to one spouse, inheritances or assets brought into the marriage would qualify as non-marital. Be careful however that these gifts or inheritances have always remained solely in the receiving spouse’s name and have not been commingled with earnings or other marital properties. If they are commingled with marital property(ies) then they will usually lose their non-marital title and thus be subject to division as marital. Non-marital assets are retained by the spouse that owns them. The starting point for dividing marital property is a 50/50 split between the parties.

Please understand there is no bright-line analysis that can identify the marital and non-marital assets and it is thus imperative that your counsel knows exactly why you believe it is or is not marital. Counsel can then assist in determining its status. The burden is on the spouse claiming non-marital status to prove that it is non-marital. Thus be prepared to provide the other side with all documentation that fully establishes it as non-marital. Just saying it is will not guaranty the Court granting it to you or having the other side believe it is just that.

Marital property is all property purchased during the marriage with marital funds, appreciation on non-marital property through marital effort(s), or financial improvement to non-marital property occurring during the marriage. Non-marital property would be items or assets inherited during the marriage (and remaining in the receiving party's name only), property gifted from a third party to one party and property brought into the marriage. Gifts between spouses are marital, thus the gifting party retains a one-half interest in the gifted property. There are many elements for determining the martial or non-marital status of property and I ask that you question me regarding particular items based upon the foregoing. The other party does not have an interest in non-marital property although it can be used to provide support and homes, in the event there are dependent children, can be used by the residential parent even though non-marital. The non-owner spouse cannot acquire any interest in a non-marital home.

Debts incurred during the marriage by either party for necessities or luxuries, whether incurred in joint or individual name, are marital and the Court can distribute them equitably (this does not always mean equally). In most instances this means equally but many factors determine the equitable split by the Court. Debt incurred for non-marital property or to further affairs or other non-marital purposes would remain non-marital and that party's responsibility. Once again these are only general parameters and each case is unique to its own facts. We will develop these issues further as your case progresses.

Mandatory Discovery

You may be required to provide the other side with information beyond the 12.285 mandatory disclosure. This can many times require a forensic accountant to be employed. This too will run costs up but many times it cannot be avoided. They are instrumental in tracing where monies and possibly assets have gone during the marriage. The other side may also request certain financial and non-financial information by way of the Standard Family Law Interrogatories. These are a standard set of questions which require you to provide the answers within 30 days of receipt of them.

If you wish temporary support, then before you may even schedule a hearing you must serve the documents referenced in section I of the Certificate of Compliance with Mandatory Disclosure (“For Temporary Financial Relief Only”) with the Notice of Hearing. You must also provide 12 days for the other side to serve the documents, so it is imperative to act quickly. Therefore, a temporary support hearing will not be scheduled by this office until these documents are in my office. If we are defending against temporary support, we must serve these documents before 5:00 P.M. 2 business days before the hearing. As of this date the Judges in this Circuit will not hear any Motion for Temporary support until we have mediated this issue. This too can delay the support hearing for weeks. So it is imperative that you provide the required documents and that we schedule mediation of temporary issues as quickly as possible.

Aside from the mandatory discovery mentioned above, we may be required to provide copies of all the bank statements (on any account on which you have signature capacity) for the last three year period as well, so you should locate these as well. Other financial information you wish me to review should be forwarded to me within this time frame as well although it should be noted that it is not to be turned over to the other side at this time. In the event you are under a pension, retirement or other employment plan, you must request from the Plan Administrator or your Employer current values on the plan whether vested or not. Failure to obtain this information will subject you to contempt or fees payable to the other attorney. You should also obtain the same information on stock options, whether vested or not.

Many clients apologize that they are not more “up to speed” on their financial condition. Please understand that we can obtain most financial documents directly form the other spouse’s employer, financial institutions, brokerage houses and others through discovery. It is just easier to have it from you but it only delays the process if we are required to go get it. That is not to say you should break into your spouse’s desk or other safe place. This should never be done. If the materials are readily available then make copies for me. Other wise we will obtain it through the regular Court permitted process.

The Financial Affidavit, which is required under mandatory disclosure, is the sole most important piece of information in your case. It is for this reason that you must take the necessary time to complete it and understand it. If you do not understand it, then we ask that you call us immediately. The expenses and income information should be calculated using actual or anticipated needs with any explanation you desire. They are for my initial review and will not be forwarded to the other side until I have reviewed them with you. Written thoughts and questions regarding them are most helpful to me. If alimony is not an issue, as discussed below, then the expenses are not that important and you should not spend much time on these. If it is an alimony case then they are very important. This form must be returned immediately as the entire case is formulated in most instances from this information.

As stated to you all information provided solely to this office is confidential but information divulged in the presence of other parties, be they your friend, parent or current spouse, is not confidential and is subject to discovery by the other side. I therefore caution you not to reveal information you wish to maintain as confidential to anyone other than this office. Hopefully you know that transmitting documents and materials via the internet is not secure. For this reason I will not respond to requests by internet unless you email me and then I will presume you have released me from the attorney/client privilege for purposes of responding to your request(s) by internet transmittal.

Mediation

Prior to setting the case for trial, the Court will require the parties to mediate. This is a process whereby a trained mediator meets with both sides for 3-6 hours. Customarily the attorneys and possibly the accountant(s) are also present. Everything discussed at mediation is privileged and cannot be divulged by either party at trial. Information given by one side to the mediator cannot be divulged to the other side unless specifically released. The mediator is not the Judge. He/she makes no decisions in your case. They are there to facilitate settlement. They will never testify in your case so selling them on what a good person you are is a waste of time. They only care to settle your case. Rarely they will ask to meet with both parties present and normally the parties never see each other unless they pass in the hall on the way to their respective rooms. The mediator goes back and forth between the rooms. If issues are agreed upon at mediation, then a mediation agreement is written up, reviewed, approved by all and then signed. Once signed then it is presented to the Court and approved by Order. You can agree on all issues settling the entire case or a limited number of issues and then the unsettled issues will be tried. If you are unable to reach agreement and further mediation would not be helpful then the mediator will declare impasse and no further mediation is called for.

Case Management

The Court may set the case for Case Management in short order. This is a hearing before the Court for the attorneys to tell the Court where the case is proceeding and how long they think it will take to prepare it for trial. Your attendance is not normally mandatory but as always you are welcome to attend any hearing on your case and if the Judge requires your attendance we will notify you. Once the matter has been heard at Case Management and if you have previously mediated and reached impasse, it will be set for pre-trial at which time the attorneys will appear before the Court and set the time and date for hearing with the Court's assistance. It will be necessary that we provide a list of all witnesses and identify all documents which we intend to use at trial. Your help is instrumental in this process and I ask that you identify all witnesses whom you believe would assist with the trial and all documents which you believe would be beneficial to the Court at trial to prove our case.

I cannot identify all the documents that would assist with your particular case but these would include bank statements, photos, purchase agreements, receipts, checks, letters and other documents to help the Court determine if the property or debt is marital or non-marital or to otherwise prove your needs and entitlements.You will be billed according to our written agreement on a monthly basis. The statute provides that the party with the greater ability to pay is responsible for the fees and costs, but the Courts have traditionally required payment of fees and costs according to each party's ability based upon the assets and income of each after conclusion of the case.

I prefer that you place all requests or questions in writing so that I may answer them in writing. Please understand that my secretary, Marge, has been with me for 32 years and is integral to my business. I ask that you treat her with the respect and courtesy that she deserves. She is not the attorney on your case and she is only authorized to give out scheduling information or information to the client that is contained in the file. Confidential information will not be given over the telephone as she cannot be assured she is speaking with the client and I ask that you seek such information only from me. If it is scheduling of appointments or checking on upcoming hearings or the like, I ask that you ask Marge for this information in order that I do not have to charge you for the telephone call on a matter that she is well qualified to respond to. Other matters which she is not qualified to answer will be turned over to me by her. Leaving detailed messages with her will facilitate our return of your call.

We look forward to dealing with you in this very stressful time of your life and hope that you will help us improve the practice should you see any area in which we may improve. Working together we will get the best results and benefits for you. I remain,

Very Truly Yours,

Philip A. McLeod