Family Law

 

INTRODUCTION

 

 

Divorce, like all family law litigation, is an adversarial process. It is seldom pleasant; it is highly charged emotionally. After all, people are arguing about the fundamen­tals of life: children, child support, home, savings, and their future ability to live as well unmarried as married. Given that, it is unlikely that either spouse will enjoy the process. People endure a divorce; they rarely enjoy it. Your lawyer is, in fact, a buffer between you and your spouse, the shock absorber so to speak. Letting your lawyer "handle it" is a good way to minimize the emotional stresses of dissolution as, usually, [s]he is emotionally unat­tached to the case. Your lawyer is also the best source of knowing family law litigation that you usually have options and what those choices are. Without counsel, divorce is even more unpleasant as you must deal directly with the person you generally do not wish to see ever again.

 

Most clients ask about the family law litigation process of dissolution but really want to know the likely results: what they will pay or receive in child and spousal support, what happens to their business and the practical questions important to their new, unmar­ried life. One answer is to describe the process of divorce as having two tracks: procedural, that is the path of paperwork, going to court and trying to reach a settlement with the other spouse. The second answer is to discuss the path of substance which leads to the creation of an agreement or judgment on all the financial, parenting and support related issues that arise out of the divorce. Eventually, even the most contentious parties reach finality on each of their issues by trial, negotiation or both. Along the way, temporary orders of the court guide the conduct of the parties. The final agreement is either a written document known as a "Marital Settle­ment Agree­ment"; or MSA, that is attached to or incorpo­rated within the final judgment or a series of orders of the court. It is generally agreed that an MSA is a better result for the parties as it is negotiated between the people who care about the results rather simply ordered by a disinterested stranger called a "judge". When approved by the court, an MSA becomes legally binding and is fully enforce­able on both parties.

 

 

OUTLINE OF THE PROCESS

 

 

Dissolution begins when one spouse files a petition for dissolution of marriage and has it served on the other spouse. That spouse files a response within 30 days and the process begins. There are certain requests typically made of the court early in the process. These are temporary child custody, visitation and support orders, temporary spousal support and a request for attorney’s fees. These financial requests usually come from the financially disadvantaged spouse. They are temporary as the court is not authorized to make permanent orders until trial as it has not heard the parties present their evidence. Only then may a permanent order be made through the family law litigation process. Even after trial, on proof of materially changed circumstanc­es, permanent orders may be modified.

 

In this pre-trial period, both sides ask for documents and answers to written or oral questions seeking evidence to prove their case at trial. Spouses have absolute duties to provide full and accurate disclosure of all such informa­tion requested. Sometimes it is difficult to have the other side understand or at least to comply with the duties of providing the information sought.

 

If an MSA cannot be reached between the spouses, a trial is held where both sides present their evidence and arguments to the court. The judge decides, point by point, making orders, all becoming part of the judgment under which the parties must live till each order terminates of its own terms, if at all. Child support orders, for example, terminate when the child is no longer legally a child. Spousal support orders may or may not terminate depending on several factors including the length of the marriage.

 

Orders may be modified post-judgment based on new, material facts. The payor of spousal support becomes critically ill, cannot work, has no other resources and cannot pay support. Alternatively, the payor grows old, retires and seeks a reduction in spousal support. The receiver of spousal support suddenly becomes a high earner and has no further need for spousal support or, for that matter, as much child support if there are minors involved. These are obvious examples.

 

Such is the normal process with family law litigation concerning, divorce, child support and dissolution without any reference to domestic violence or other factors which can complicate the process. Nevertheless, the basic process remains no matter what additional stresses are put upon it.

Read more about Premarital Agreements...