Once you have made the decision to end the marriage it’s time to plan and prepare for the process of divorce. Before signing anything or reaching any agreements or relying on the advice of your best friend, you should seek the advice of an attorney to educate yourself about your rights, the process your facing, and what will be likely outcome.
General tips on preparing yourself financially, emotionally and for your children are available in our guides section. However, an experienced family law attorney can give you a good picture of exactly what you are facing and the steps you need to take in your specific situation. Once you know how the law applies to your situation you can then decide whether or not you are eligible to proceed with a divorce, a non-contested divorce or a dissolution. A dissolution often is the best alternative to divorce, it saves money, time and emotional stress. To see more on the process of dissolution Click Here.
If a dissolution or non-contested divorce is not possible the next step is to prepare yourself for the filing of your divorce. The process begins with your attorney preparing a “complaint” for divorce. Along with the filing of the divorce complaint there are a number of important documents that must be prepared and filed. These documents include a breakdown of your expenses, income, and debts and, if you have children, documents pertaining to your children. It is important that these materials are filled out properly, as the court will use these documents as a source in setting the initial orders that pertain to your support levels and parenting time. Our office will assist you in the preparation of all of these documents ensuring that they are done correctly and in a matter most advantageous to securing your position early on in the litigation.
Once all documents are prepared they are then filed in your counties’ Court of Common Pleas, Domestic Relations Division. In addition, all necessary restraining orders and support orders protecting you, your finances and your children, during the pendency of the divorce, will be filed.
Generally, within three (3) to five (5) days your spouse will be served with the complaint by certified mail. If your spouse refuses to pick up the mailing a personal process server can be appointed. If you do not know the location of your spouse there is an alternate method in which notice of the action can be “published.” Service by publication means that notice of the divorce is posted in the court’s local reporter or paper.
Once service has been completed your spouse will have twenty-eight (28) days in which to answer and file all necessary paperwork. If they fail to answer, the court will schedule a non-contested court date. A non-contested divorce is one in which you and a witness can appear in court and request that judgment be entered in your favor without your spouse being present. If you have been served with a divorce and you fail to respond the court may grant the divorce without you present. If, however, as in most cases, your spouse answers within the required period of time and seeks the services of an attorney, the court will proceed to set the pretrial schedule and begin issuing temporary orders concerning children and/or support.
Once both parties have entered into the lawsuit the court generally will issue decisions on any temporary orders that have been requested by the parties. These orders can include such things as temporary custody, child support or temporary spousal support (alimony). If there is an emergency situation or if one party is unhappy with the initial decisions of the court, pretrial hearings can be requested. These hearing are generally heard by magistrates assigned by the judge and testimony is presented by each party to support either a modification of the temporary orders or additional orders in their favor. This initial pretrial litigation can be important as in many cases it lays the foundation for how the divorce will proceed throughout the entire process.
In addition to the possibility of actually having to go to court and having hearings, a discovery process will be conducted by your attorney. Before your divorce can be finalized the law requires something called “full disclosure.” This means that your spouse must disclose all assets, debts, and financial information. This is generally done through the use of specific requests that the attorney makes, such as request for documents, proof of earnings, etc. Sometimes it is necessary to conduct depositions. Depositions, while generally done in the attorney’s office, place one party under oath and the attorney can then question the party about all matters pertaining to the divorce. This questioning is recorded by a court reporter and the answers can be later used at an initial hearing or trial. Often times the attorney may issue subpoenas for records directly to banks or employers to secure the most current evidence of earnings or accounts.
After the conclusion of the discovery process, when you and your attorney are confident that full disclosure has occurred, it is time to have a settlement conference with your lawyer. At that point, your lawyer will refer back to your initial case evaluation and the general principles of law and apply them to the specifics of your case. Together with your lawyer you will come up with a proposal for settlement to be forwarded to your spouse’s attorney. This is an important time as it is an opportunity to settle the matter quickly and cost effectively. The process of pretrial litigation, discovery and settlement negotiations in Dayton and surrounding counties generally takes three to five months.
After the initial proceedings the court will order the attorneys and parties to report to the court for what is referred to as a “pretrial conference.” At that conference, the court asks to be advised of the status of discovery, whether there has been any problems with full disclosure, and the status of settlement negotiations. An effort is made to narrow whatever issues there are in dispute and if the case has settled then to set further proceedings to bring the divorce to a close. If the case has not settled, then it is decided how the litigation will proceed. Depending on the circumstances this may mean that the court orders one party to comply with discovery requests or the court may assign a guardian to the children, if custody is in dispute, or order home investigations or even psychological evaluations of the parents. If further discovery is required such as depositions the court will also set a time frame for its completion. Lastly, the final trial date is set, before which all discovery and all reports to the court must be concluded.
Between the time of the pretrial conference and the actual final trial date further pretrial litigation may become necessary, such as modifying temporary custody, child or spousal support amount or even contempt of court orders if one party has violated the prior order of the courts. It is now common in many courts to assign a “settlement conference” day before an actual trial in order to give the parties one final chance to work things out
During the period between the time of the pretrial conference and the trial, your attorney should make every effort to bring the matter to a settlement. However, if the disputes cannot be resolved then the matter will proceed to trial. Divorce trials in Ohio are conducted directly to the judge. Your attorney should be meeting with you and your witnesses discussing various trial strategies and preparing you to testify. In addition the attorney will be preparing all necessary documents to support your position to be submitted to the court as exhibits.
Client preparation is the most important aspect of going to trial. In our office we cover how to handle direct examination, cross examination, along with witness preparation and an outline of how the trial will actually proceed. In all ways, when you step into the courtroom on the day of trial, you will know what to expect.
After the trial has concluded, the judge will generally take the matter “under advisement” and issue a written decision within several weeks. If one party is unsatisfied with the outcome of the trial they may, in a separate action, file a challenge to the judge’s decision with the court of appeals, which rules on issues raised at the lower court level.
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