How a Divorce Works (part 1)

After deciding on a lawyer, and having the attorney decide on you, the next “most important step” is to understand the process. Your understanding of the process, and avoiding the “Oh, I did not know that was an option” conversation, is crucial. If you do not understand the process, then you might not be able to assist your lawyer with your case. And make no mistake: it is your case, and your lawyer needs your help. If you do not feel those two statements are true, please re-read the previous post on selecting a lawyer.

There are two parts to  understanding the process: 1) understanding language and terminology; and 2) understanding procedure. Today we are going to focus on language, because if you do not speak the language, everything else falls apart. And really, I went to school for a long time to learn these terms, so it gives me a chance to show off.

Some basic terms in dealing with a divorce from beginning to end are:

1. Petition for Divorce – A petition is a document filed with a Court asking for some form of relief. A divorce petition would include asking the Court dissolve the marriage, determine issues regarding custody, residency, parenting time and support of children (if any), determine if spousal maintenance (alimony) is to be paid, and if so by which party, in what amount and for how long, dividing assets and allocating debts, and payment of attorney’s fees and costs.
2. Parenting Plan – A parenting plan establishes child custody, residency, and parenting time. A parenting plan is required by statute, but what is included in the parenting plan can vary. The parenting plan should establish not just the time each parent will spend with the children, but each parent’s co-parenting duties and responsibilities to the children.
3. Domestic Relations Affidavit – Before a Court can enter orders regarding child support, spousal maintenance, and possession of assets or payment of debts, the Judge must have financial information for the parties. A domestic relations affidavit gives the Court that information. The key word is “affidavit”, and this is a statement sworn under oath to be true. A domestic relations affidavit can, and should, be amended as more information becomes available. But, it is important that when the affidavit is signed the information therein is accurate.
4. Child Support Worksheet – The Kansas Child Support Guidelines determine how much child support is paid, and by which parent. In making that determination we look at the parties’ incomes before taxes, the number and ages of the children, costs for insurance, parenting time, and other factors specific to your case to determine what child support should be paid. The worksheet is the rendition of that calculation.
5. Temporary Orders – Temporary orders should be issued in each case given that a divorce cannot be granted (in Kansas, and absent an emergency) for at least 60 days after the petition is filed with the Court. Given that that 60 day period is the minimum amount of time, and most likely it will be considerably longer if the parties cannot agree to resolve all issues, temporary orders are needed to address issues regarding children, payment of support, and possession/use of property can be addressed while the case is pending. Most temporary orders follow a format, and while each case is different and the temporary orders may need to be tailored to fit a particular situation, generally Courts require some uniformity so that the “usual” issues are addressed. To that end, it is important to remember that a temporary order is just that: a Court order, and violations of Court orders are frowned upon by judges.
6. Summons/Entry of Appearance – The Court must have written verification that the respondent (non-filing party) has notice the divorce has been filed. The summons and/or entry of appearance is that verification, and puts the other party on notice the case is pending, and requires them to act.
7. Scheduling Order – We generally ask the Court to issue a scheduling order, and usually we ask early in the case. A scheduling order establishes dates to complete discovery, for pretrial and trial. This does not mean we are set on taking a case to trial, but rather we want to establish a date now, even if it is months away, so we can work on settlement, but at the same time have a date certain the case will be completed.
8. Discovery – Discovery is the process of determining what the evidence will be in a case. Discovery can be formal or informal, but generally requires each side to disclose witnesses and exhibits they will present at trial. Discovery ensures each party knows the facts of the case, each party can negotiate in good faith, and if they proceed to trial, there are no surprises.
9. Alternative Dispute Resolution – Settling a case is usually best, and ADR simply means settlement. The most common form of ADR is mediation, where the parties meet with a trained mediator to discuss their case and possible settlement options. There are other forms of ADR, some of which can involve reports and recommendations to the Court, and it is important to discuss all forms with your lawyer.
10. Settlement Agreement – If you reach an agreement to settle the issues in your case, that agreement must be reduced to writing and signed by the parties. The agreement is then presented to the Court, and becomes enforceable as a Court order. A settlement agreement should include issues such as adopting an agreed parenting plan, provisions for child support and/or spousal maintenance, how property will be divided, how debts will be paid, and the how the provisions of the agreement will be accomplished.
11. Decree of Divorce – The decree is the document granting the divorce, and approving the settlement agreement, parenting plan, and child support worksheet. Generally, the decree adds to the parties’ agreements by making them enforceable as Court orders.
12. Pretrial Order – If the case is to proceed to trial a pretrial order is issued. The order establishes the issues of the case, the witnesses and exhibits for trial, and establishes dates. The pretrial order should be viewed as the document that controls the trial, and it is important that all witnesses and exhibits are listed in the order. Usually additions to the pretrial order are not made absent extraordinary circumstances.
13. Trial – Simply put, a trial is the procedure where both sides offer evidence (witnesses and exhibits) and the Court issues a ruling. Trials can vary with opening statements, closing statements, and the filing of briefs with the Court, but most trials follow the pattern of presenting a Judge with evidence so that a ruling on the issues can be made. At the conclusion of the trial the Judge will issue a decree of divorce and journal entry setting forth the ruling.

There are more terms that could be specific to your case, and your lawyer can help you with those terms. The important thing to remember is that you continue to ask, and if you do not understand, ask again. If you do not understand the terminology you will not be able to make decisions that are best for your case. Thanks for reading.