A dissolution (not “dissolutionment”) is an agreed termination of a marriage by both parties. A dissolution requires both husband and wife to work together through their attorneys to reach agreement on all issues necessary for a full settlement of the case. All issues must be satisfactorily resolved before a dissolution may be filed with the court. A dissolution makes no reference to why a marriage is breaking up and no allegations of fault are included in any paperwork.

The primary document in a dissolution is called a “separation agreement.” The separation agreement is an enforceable contract between the husband and wife and will address the custody of children and related issues, property division and spousal support.

Other documents that are filed include a petition, an asset & liability affidavit, and a waiver and acknowledgment (if one party is not represented by counsel). If there are children, a shared parenting plan may also be included along with health insurance and custody affidavits. A decree of dissolution is granted at final hearing.

The process of obtaining a dissolution includes two stages. Stage one is where the parties and their lawyers work through the legal issues in the marriage termination and reach agreement on all these issues. The necessary paperwork is then prepared and executed. Stage one is concluded when the paperwork is completed. The length of the negotiations of this stage is up to the parties and can be very rapid or drawn out–it all depends on the intentions of both parties.

Once the paperwork is finished, the dissolution may be filed with the court. This begins the second stage of the process. A hearing date is assigned at the time of the filing of the paperwork and is generally about one month from the date of filing. Both parties are required to appear before a judge for a brief final hearing the purpose of which is to demonstrate that the parties understand their agreement. When the judge grants the dissolution, the separation agreement is incorporated into the decree of dissolution and made an order of the court. The parties leave the courthouse with certified copies of the decree. If minor children are involved, both parties will be required to attend a parenting seminar prior to final hearing.

Dissolutions contain three major categories of issues to be decided:

1. the allocation of parental rights and responsibilities (custody),

2. division of marital property,

3. 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 and valuation of all property owned by either of the parties as marital or separate property.

3.) Spousal support may be an issue depending upon the length of the marriage, the ages of the parties, their incomes and other factors.

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.