Like all lawsuits, a divorce requires the filing of a complaint by one party–the plaintiff–against another party–the defendant. The defendant typically files an answer and counterclaim against the plaintiff. This makes the divorce “contested.” Upon filing, the case is assigned to a judge and magistrate who will decide the issues in case. The first step in most cases is the issuance of a “temporary order.” A temporary order or “T. O.” is an order that is issued by a magistrate pertaining to issues of child custody, child support, visitation, spousal support, and payment of marital obligations. The temporary order is issued approximately 5 or 6 weeks after the filing of the case and will be in effect as long as the case is pending. A pretrial conference will usually be scheduled before a judge within the first few months. The conference is held in the courtroom and gives the attorneys an opportunity to present the issues to the judge with the parties present. The judge comments upon the issues and attempts to move the case toward resolution or trial. Beginning early in the case, the lawyers will engage in a process known as discovery. Discovery is the stage where the relevant facts are uncovered through a variety of techniques including oral depositions, written interrogatories, requests for production of documents, subpoenas, request for admissions, and inspections. The information obtained is necessary for the informed resolution or trial of the case. Divorce cases contain three major categories of issues: the allocation of parental rights and responsibilities (custody), division of marital property, spousal support. 1.) The allocation of parental rights and responsibilities involves question of custody. The custody of a child may be given to one parent (a sole residential parent) or to both parents through a shared parenting plan. Child support, which is determined by a statutory formula, must be calculated. Visitation rights (in the case of a sole residential parent) must be addressed. The health insurance needs of the child will also be provided for, along with the designation of which parent receives the tax dependency exemption and child credit. 2.) The division of property requires the proper categorization of all property owned by either of the parties as marital or separate property. Property must be valued, which may require the use of appraisers or accountants, and all liabilities must be determined. A balance sheet is ultimately prepared that suggests the proposed distribution of property. 3.) Spousal support involves many factors such as the length of the marriage, the physical and mental health of the parties, the assets and liabilities of the parties, and the ages of the parties. Vocational experts may be required to provide expert testimony on the employability of a party. Ultimately the case either will be settled by agreement or will be tried before a judge. There are no juries in divorce cases. In the case of a trial, the judge hears all the evidence and testimony of witnesses and issues a written decision that is appealable by either party.

Post-decree litigation is that which takes place after the granting of a decree of divorce, dissolution or legal separation. Often one party determines that the ex-spouse has violated a prior order of the court in some way and files a motion to have the order enforced and the offending party punished. This is generally known as a contempt action. Another major source of post-decree litigation involves children. In all divorce, dissolution or legal separation decrees in which there are minor children of the marriage, the court which issued the original decree retains jurisdiction over all matters pertaining to the children. This is referred to as the “continuing jurisdiction” of the court. The bulk of post-decree matters before the courts involve custody-related issues. Often a court will retain jurisdiction over the issue of spousal support. If circumstances change from the time of the original spousal support award, it may be modified by post-decree motion. This generally will happen if there has been a significant change in the income of one of the parties that was not foreseen at the time of the award. Post-decree litigation is commenced in the form of a motion by one party. The original case caption and number will be used. The person filing the motion must serve the other party with the motion as in the commencement of a divorce. The motion is set for hearing before a magistrate of the court. A magistrate is an attorney appointed by the court to hear a variety of pre-decree and post-decree domestic relations matters. The magistrate functions like a judge in the case and conducts all conferences, hearings and trials. Because of the volume of cases set before magistrates, it may take some time before an actual trial can occur. Prior to trial, the attorneys will conduct discovery just as in a divorce case. Oral depositions, written interrogatories, requests for production, inspections and requests for admissions are some of the methods used to discover the facts of a case. Following trial of a case by the magistrate, either party may file written objections to the decision. The objections may be argued before the judge assigned to the case. Motions involving the allocation of parental rights and responsibilities may ask the court to change the custody of a child. The court may, if a number of legal tests are met, modify the existing custody order. The court must be shown that a change of circumstance has occurred since the time of the decree, that the change is in the best interest of the child, and that the benefit resulting from the change will outweigh any harm. Commonly, in motions seeking change of custody, a guardian ad litem is appointed to represent the interests of the child. The guardian conducts interviews with both parents and the child, visits the child in the home of both parents, and may interview other relevant witnesses. Ultimately, the guardian will make a recommendation to the magistrate. The amount of child support that should be paid may be considered in a post-decree motion as well as visitation issues and health insurance matters (pertaining to children). Where the parties are in agreement on a post-decree modification, a motion and entry may be “walked” through the court process, eliminating the need for a hearing.