Often, much of what goes on in a divorce process is unfamiliar, confusing, frustrating and upsetting. This article may answer many of your general questions about the divorce process. But, it is not intended to answer all questions specific to your case. Shown below is some helpful information about the divorce process.
When you make an appointment with an attorney or law firm, it will usually be your initial consultation. You will share with the attorney some important specifics about your marital situation. The attorney will discuss the pros and cons of a marital divorce or dissolution, based upon your situation. You may receive a Client Intake Questionnaire or a "divorce packet" in the mail before or after that meeting or during the initial consultation.
Contract for Legal Services or Retainer Agreement
At or after your initial consultation, you may receive a "contract for legal services" or a "retainer agreement" for your review and signature. The contract or agreement will describe the terms and conditions of your attorney's or law firm's representation, including fees and retainer payments. After you sign the contract or agreement, you also pay an initial retainer fee. When the attorney or law firm receives your signed contract or agreement and your retainer payment, work on your case will usually begin.
Divorces proceed according to rules set by the Supreme Court of Ohio. The filing of a Complaint for Divorce (it requests the Court to grant a divorce) is the first divorce step. For the Court to grant a divorce will require a number of documents, such as motions, affidavits (sworn statements), and restraining orders. The Complaint for Divorce and other supporting documents must be served on (physically delivered) to your spouse. "Service" is done by requesting the Clerk of Courts to provide the documents to your spouse (the "opposing party") by certified mail or by personal service via a deputy sheriff or via a personal process server.
Complaint for Divorce, Answer, Counterclaim, and Temporary Restraining Orders
When a Complaint for Divorce is served upon your spouse, an Answer (response to Complaint for Divorce) and Counterclaim for Divorce (requesting the Court to grant your spouse a divorce from you) is normally filed by your spouse. In addition to the Complaint, Answer and Counterclaim between the parties, Temporary Restraining Orders (restrain a spouse from certain actions, such as closing financial accounts, etc.) are standard practice in the divorce process.
General Court Actions
A judge and magistrate will be assigned to your case at the time of filing of your Complaint for Divorce. At the Temporary Orders Hearing, as well as at every court appearance, the magistrate or judge will encourage the spouses and their attorneys to negotiate and resolve issues by agreement, rather than proceeding toward a time-consuming and of expensive contested divorce through a court trial. Your attorney will provide you specific information when this occurs.
Temporary Orders Hearing
Your first court appearance will usually be a Temporary Orders Hearing ("TRO") before a court magistrate (court attorney assisting a judge). The magistrate will determine the legal orders necessary to maintain a semblance of the marriage status quo while the case is in process. This determination is made on the basis of Affidavits submitted by both spouses. No evidence is presented as testimony to the magistrate. It is common for several affidavits to be filed after the Temporary Orders Hearing. Your attorney will receive the magistrate's guidance sometime after the hearing.
Full Evidentiary Hearing
If either spouse is dissatisfied with the court's Temporary Order, a Full Evidentiary Hearing before the magistrate can be requested. Due to the number (heavy "docket") of divorce cases, scheduling and then actually conducting these hearings can be delayed and frustrating. That's because "continuances" (court dictated delays in scheduling of cases) is a constant reality. In general, the process is often characterized by delay and constant judge and magistrate pressure to negotiate solutions rather than conduct evidentiary hearings.
The guidelines of the Supreme Court of Ohio are that as long as 12 months may be taken to resolve a divorce when there are no minor children. Eighteen months is the guideline period when there are minor children. However, if a case is highly contentious, it could take much longer, i.e. two or more years.
The court appearance will probably be for a Pre-Trial Conference. At such conferences, lawyers and their clients meet with the judge assigned to the case in his or her courtroom to discuss progress and issues. Your attorney will prepare an appropriate Pretrial Statement to file at the conference, which will inform the court of the nature of the case and positions on the issues.
Additional Pre-Trial Status Conferences
The court often schedules additional pretrial conference or status conferences in which the spouses must be present prior to setting a trial date. Also, both parties' attorneys sometimes meet with the magistrate or judge in chambers with the spouses being excluded. Such meetings are necessary and helpful in asserting position's to work toward achieving solutions. It can be frustrating for clients when things happen outside of the courtroom. However, your attorney will keep you continually informed about all such developments.
Cases that remain unresolved are assigned for trial before the judge. Such trial assignments are often "continued" (delayed) for myriad reasons! Some reasons may involve tactical decisions made by lawyers in an attempt to better position their clients. The sheer numbers of cases assigned on a particular day necessitates some continuances being decreed.
What Goes on Outside of Court
While your case is proceeding, you may become frustrated because the divorce process is often slow. Often, it may appear that no progress is occurring. That perception is often true. Largely governed by the court schedule (docket) progress in any divorce case can appear to be slow. However, the glacial pace of your case can be helpful. It permits the emotional marital wounds to begin to heal. Remember that you will make many important personal and financial decisions, and some may have life-long consequences. It is important that your decisions are not rushed.
The "discovery process" is the most significant part of the out of court aspect of your case. This process is designed to permit both spouses to obtain all necessary personal and financial information to obtain a just and fair divorce. Discovery can take several forms. Written questions ("Interrogatories") that the other spouse must answer are often used. Also, "Depositions" which are the examination of spouses and other persons under oath before a court reporter are done.
Either spouse can compel the other to produce documents, such as banking or business records, tax returns, and property records that may be necessary for complete and effective preparation of the case. If a party fails to comply, the attorney can "Subpoena" documents. A subpoena means that your attorney files a form with the court to order a person or an entity to produce records. The "discovery process" can be an arduous and time-consuming process. But, it is essential that both spouses have all the information that the law permits.
Collecting Personal and Financial Information
You may be required to do a lot of "homework" gathering information, preparing documents, and putting papers in order as your part of the discovery process. This will be a big part of your job in preparing your case. Preparation and presentation of your case is really a partnership between your lawyer and you. In order to accomplish your goals, your timely response to your attorney's requests for information or documents is crucial.
A great deal of negotiation between the spouses and their lawyers occurs at the courthouse. However, a "best practice' is to attempt settlement discussions in the less¬ pressured atmosphere of the attorney's or law firm's office. Negotiations leading to reasonable settlements are the real accomplishments of a capable and competent divorce attorney. Your attorney and law firm will keep you informed as to the status of negotiations. Your attorney will not commit you to something without your approval, unless it is a procedural matter such as (continuances, scheduling, etc.).
You, Your Spouse, and Your Spouse's Lawyer
Your divorce case will be influenced by the way you and your spouse choose to conduct yourselves. Acrimony and conflict will result in more contact between you and your attorney and more court appearances. The result: more legal fees and costs. To the extent that conflict can be minimized, so can the expense of our case. You cannot be held responsible if your spouse is unwilling to comply with discovery requests, court orders, or general principles of decent behavior. Additionally, the lawyer your spouse chooses ("opposing counsel") will also have a significant impact on your case. One important note: Do not take legal advice from your spouse's attorney! Attorneys often hear statements like: "My spouse says that his/her attorney says that xxxxxx will happen to me." The only attorney whose advice you should take is yours.
Children often psychologically and emotionally suffer as a result of the breakdown of their parents' marriage. This is especially true if parents engage in conflict concerning the marital divorce. While the court has the ultimate power to decide the allocation of parental rights and responsibilities, parents are best equipped to make such decisions together in the best interests of their children.
Parental Education Programs
Many domestic relations courts, including Franklin County, require that all parents who are divorcing, separating, or dissolving their marriage, attend a parental education program. Your attorney will generally provide a brochure about the program. Attendance is often required within forty-five days of the filing of the marital Complaint. You should make arrangements to attend as soon as possible. To obtain information or referrals about helping your children through the marital discord period, or to arrange counseling for them, advise your attorney so that appropriate community resources can be determined for your case.
If you and your spouse are unable to agree about the care of your children, the court may require the spouses to be assessed for "mediation." Mediation involves the use of a trained third party professional who will attempt to assist the spouses in reaching a mutually agreeable solution for parenting of their children. Parents do not need to commit themselves to mediation or to any mediated solution without the consultation and advice of their attorney. However, attorneys are discouraged from attending the mediation.
Many post-divorce parenting options are available to you and your children. The decisions about them are the most significant of all those you will make during the next several months. You must be comfortable with your decisions. Your attorney can work with you to minimize the negative aspects of this process for your children and to help you and them through the tough times that may occur in the future.
Attorney Fees and Related Legal Expenses
Although attorney fees and related legal expenses are described in a "Contract for Legal Services" or "Retainer Agreement" it may be helpful to review those to prevent misunderstandings. The factor, which will determine your divorce investment, is attorney time plus experience and knowledge. They constitute the legal services that you will receive.
How much time is spent on your case depends on several factors. Some factors are within your control while others are not. You can control some of the amount of time your attorney spends by being organized when you meet or call your attorney. Having your questions prepared in advance, and doing your assigned tasks in a timely manner is vital. Factors, such as your spouse's choice of lawyer, the judge to whom your case is assigned, and the complexity of your case, can influence your legal fees and related expenses and are not usually within your control.
Your attorney will be willing to discuss your fees and related legal expenses with you. You will receive regular monthly or bi-weekly statements of account. Your attorney and law firm will expect you to live up to your part of the "Contract for Legal Services" or "Retainer Agreement." If you foresee problems remaining current in your financial obligations to you attorney or law firm, discuss the issue and reach some agreeable solution
This article may have raised some questions for you, as well as providing you some valuable information. If you have concerns or issues, please contact your attorney or law firm to discuss your concerns and answer your questions. Your attorney will take the responsibilities inherent in the attorney-client relationship seriously. The mutual hope is that together, this difficult process can be completed in a spirit of mutual cooperation and respect.
Contact DHP for a free confidential consultation with one of our attorneys. We can give you information about your specific rights and options.
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Fewer than 1% of all attorneys in Ohio have earned the Certified Specialist designation.
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