As an attorney who practices family law, I have been through many divorces. I am familiar with the in and out of the divorce process. Sometimes I find myself flying through my explanation of terms and procedure in order to get to the facts of the case and to start planning my strategy. I forget that the majority of my clients have never been through the process and most likely have no idea what I am talking about. This blog is designed to walk the reader through the basics of the divorce process.
Once the decision to proceed with divorce is made, the first step is to file the Petition for Dissolution of Marriage. The Petition is a rather simple pleading. The Petition consists of basic facts about the parties, the marriage, and children. If there is a history of domestic violence or the involvement of the Department of Human Services, it too is mentioned in the Petition. Along with the Petition, a Case Information Sheet and a Summons are filed. The Case Information Sheet, in my opinion, is rather redundant of the Petition. It provides contact information, birth dates, and social security numbers of the parties and children. The Summons is essentially a notice to the other party that a divorce proceeding has been filed. It gives information to the other party regarding a response and explains the temporary injunction that automatically gets put in place. The party who files the Petition, is called the Petitioner.
If you are the party who initially files, you have the duty to serve the other party with the initial pleadings. Sometimes, depending on how amicable the parties are, the receiving party can waive service. I am frequently asked whether or not there is an advantage of being the first to file. Quite frankly, there is not. Filing quickly can be advantageous for the purpose of putting in place the temporary injunction. The temporary injunction does not fall into place until service is complete.
If you are not the Petitioner, then you are the Respondent. Upon being served or waiving service of the Petition, the next step is to file your Response. As the Respondent, you have 21 days to file the Response. The Response is simple. If there is any inaccurate information in the Petition, this is the time to call it out. If the Petition is accurate, the Response says just that.
As stated before, the temporary injunction falls into place upon service. In summary, the temporary injunction restrains the parties from transferring, encumbering, concealing, or disposing of marital property. Each party is restrained from molesting or disturbing the peace of the other party. It also prevents either party from removing the minor children from the state without Court Order. Lastly, the temporary injunction restrains parties from canceling or changing any sort of insurance for the other party or the children.
The next step is the Initial Status Conference, and also the first time the parties appear in court. Unfortunately it is a rather underwhelming moment. The status conference is an informal scheduling meeting. Both parties attend with counsel, and receive dates for deadlines and request hearing dates. It lasts all about ten minutes.
During this process, at some point your financial disclosures will be due. The disclosures are nasty homework, but are both necessary and required. The disclosures show the financial situation of each party. It enables each side’s ability to properly divide property and debt, determine spousal maintenance and child support.
There are two hearings that occur in the divorce proceedings. The first is the Temporary Orders Hearing and the second is the Final Orders Hearing. Their names give away their purpose. The Temporary Orders Hearing (TOH) is a hearing where the Judge basically solves short-term problems and puts a bandage on the situation. Prior to the TOH, the Court requires the parties to participate in a settlement conference. You will notice, the Court is always pushing parties to come up with an agreement. They do this for two reasons, one they hope the parties will agree and get along, and two they like to clear their calendars! The settlement conference provides an opportunity to exchange positions as well as negotiate and possibly settle some or even all of the issues. Anything not settled, goes before the Judge at the TOH. The TOH is an opportunity to have issues heard regarding temporary payment of debt, temporary support, and temporary parenting plans. This is not a hearing that discusses the division of property and debt, or determines permanent solutions. Decisions made at this hearing are just that, temporary.
Prior to the Final Orders Hearing, the Court will require mediation. The difference between a settlement conference and a mediation is that there is no mediator in a settlement conference. For mediation, you have the option of going through the Court’s Mediation Office or a Private Mediator. Personally, I choose mediators who are licensed attorneys that have experience in family law in El Paso County. Again, mediation is a place to resolve some or all of the issues.
If everything is resolved, the next step is to create a Separation Agreement and Parenting Plan, if children are involved. The Separation Agreement memorializes the agreements made between the parties.
However, if not all the issues are resolved, you end up in front of a Judge. The Final Orders Hearing is generally set for three hours. After the testimony of each party, testimony of witnesses, and evidence presented, the Court gives a ruling, that becomes permanent. Although permanent, it is only permanent until further Court Order. At the hearing, a decree of divorce is entered and the parties are officially divorced.
Unfortunately, the Final Orders Hearing doesn’t always solve problems. Circumstances are constantly changing, and because circumstances change, orders need to change. Post Decree modifications often involve children because children are ever growing and changing.
Well, there you have it, a summed up version of the divorce proceeding in El Paso County, Colorado.