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Understanding the Divorce Process From Beginning to End

on Jan 13, 2018 in Divorce

The divorce process in Maryland is complicated.  However, it can be broken down into a number of steps.  of course, every divorce is different.  Some fundamentals, however, remain the same from one case to the next.  Understanding the steps of the process makes divorce less intimidating, focuses parties, and allows for the best possible outcome.

In most cases, prior to filing a complaint in a divorce case, the parties must live apart continuously, without cohabitation, for one year.  One of the parties may file for divorce after that one year period.

During a divorce, a number of issues are resolved, by agreement, or by a judge.  This includes child custody and visitation, child support, spousal support or alimony, the use of property including the family home, and a final distribution of property, pensions and other assets.

Complaint

In the state of Maryland, the legal divorce process begins when one spouse files a divorce complaint.  The filing party lists the grounds for divorce in the complaint.  In most cases, the divorce will be on no-fault grounds.  The complaint seeks the divorce and an equitable division of property.  If the parties have minor children, the complaint demands custody and visitation terms.  

Settlement

Reaching a settlement is always an option during the divorce proceedings.  Settlement can be complete, on all issues when the parties agree.  However, settlements can also apply to only the issues the parties do agree on, leaving other issues for litigation.

Discovery

The parties or their attorneys conduct discovery.  Parties exchange documents, answers to written questions, exchange expert reports, and sit for depositions.

During this process, the court may appoint a guardian ad litem for the children when finding it is in their best interest.  A guardian ad litem represents the children in a divorce.  A guardian ad litem is important in negotiating custody and visitation as well as representing the children during a trial.

In addition to gathering evidence, the parties identify all witnesses who will prove their case to the court.  This includes fact witnesses and expert witnesses, such as accountants,

The parties must follow certain legal rules when conducting discovery.

Pre-trial Procedures

In addition to discovery, the court may order a pre-trial conference, hearing or scheduling conference.

A scheduling order establishes dates for upcoming hearings as well as a trial date.  

Courts order a pendente lite hearing, also known as a temporary hearing, when appropriate.  This hearing determines some issues for the pendency of the divorce.  This can include temporary child custody, child support, spousal support, and possession and use of property, including the family home.

Judges use a pre-trial hearing as one last chance to work with the parties toward resolving issues.  Remaining issues are identified and other final pre-trial matters are ruled on.

Courts also order the parties to participate in mediation when they do not resolve issues and the court finds it will be helpful.

Mediation

When the parties do not resolve all issues in the divorce, it may be helpful to participate in mediation.  Mediation is voluntary or by court order.  The goal of mediation is to resolve any or all issues that remain.

A neutral, third party conducts the mediation.  The mediator meets with the parties and their attorneys.  Mediation occurs at a location with all parties present.  However, the parties are not together.  The mediator goes between the parties, often in neighboring conference rooms, working to resolve remaining issues.  Mediators are also able to give parties opinions about how a judge would resolve issues at trial.

Note, mediation is not binding on the parties.  It is a voluntary process, seeking resolution of any remaining issues possible.

Final Hearing — Uncontested Hearing

When the parties reach an agreement, the final hearing is uncontested. The agreement is placed on the record during the hearing.  The agreement is incorporated in the final decree of divorce, becoming an enforceable court order.  In the state of Maryland, the court must take testimony on the grounds for divorce.  This is true even if the parties agree on all terms of the divorce.  When the divorce is based on mutual consent, both parties must still appear for the hearing.  Obviously, this hearing will be short when the parties agree.

Hearing — a Trial

A final hearing may also be a trial.  The parties bring unresolved issues to trial.  The trial is before a judge, who makes a final decision on all issues.  The parties present evidence during the trial, including witness testimony, both lay witnesses and expert testimony, where appropriate.

Trials are very costly.  Not only must the parties pay their attorneys, they must also pay for expert witnesses.  Parties will also miss time from work.  This means unpaid wages or the use of precious vacation days.  Attorneys estimate how long a trial will last, but no one can say with absolute certainty how long the case will take.  An attorney also does not know how the parties will be in the hallway, waiting for the court to handle other cases and unrelated matters.

Additionally, trials create uncertainty.  Judges use trials to resolve all unresolved issues.  This includes unresolved property issues as well as unresolved child custody and visitation.  Attorneys can speculate what the outcome of a trial will be.  However, a qualified, experienced family law attorney acknowledges he or she has no way to be certain of anything at trial.

After a trial, the judge issues a final judgment of divorce.  The final judgment will include all issues the parties had resolved prior to the trial as well as those issues previously undecided.

Considering Divorce?

If you are considering divorce, contact the attorneys at Fait & DiLima.  Our attorneys focus on family law and divorce issues.  Schedule a consultation.   We can speak with you about your particular case, and what you can reasonably expect in the coming days, weeks, and months.