By Rudman Winchell Attorney Anthony A. Trask
It is a common refrain, “I got served with divorce papers.” We hear it from hapless friends and colleagues from time to time and probably do not ask questions, preferring to remain in the dark. However, what do you do when you are the one handed the papers?
Divorce can be scary: it marks the end of something that was once expected to last forever and marks the beginning of what is probably a mystery, especially if you did not initiate things. However, the process does not need to be scary or a mystery and knowing what to expect can eliminate a great deal of fear.
A divorce is a lawsuit to legally break up a partnership. Like any other lawsuits, a divorce is begun with one party filing and serving the other party with a summons and complaint. Neither document is especially complicated. A summons is an official form from the court alerting you that a legal action has been initiated against you and it provides some guidance as to what you need to do. The complaint is simply a request by one party for the court to terminate a marriage. The complaint also itemizes the various issues that the Court will need to address, which may include issues related to minor children (primary residence, visitation, child support, tax exemptions, etc.), real estate, personal property, debts, and spousal support, among other things.
The person receiving the complaint is required to file a written answer with the court within twenty days. The answer is little more than acknowledgement that you received the divorce documents and you either agree or disagree with the statements made in the complaint. Often, the person answering the complaint will file a counterclaim, which is essentially just an affirmation that the person filing agrees and also wants a divorce.
Like any lawsuit, the parties are given the labels “plaintiff” and “defendant” but in the divorce context the labels have little importance and primarily just influence which party will start during courtroom proceedings. The labels have no effect on either party’s parental or property rights.
In cases where there are minor children involved, the divorce will initially be handled by a Family Law Magistrate at the local District Court. The first meeting with the Family Law Magistrate will be scheduled shortly after the case is filed with the Court. The parties and their attorneys (if any) will meet with the Family Law Magistrate to try to establish the initial living arrangements for the children and the amount of child support one party will pay the other (if any). Other issues are discussed at this first conference, but not a great deal is accomplished unless the parties have agreements which the Family Law Magistrate can make into enforceable Court orders. For example, the parties might agree about the vehicles each will drive and maintain until further order of the Court.
The Family Law Magistrate has the power to decide all issues that need to be addressed immediately (before the final divorce judgment is issued) but the parties do have the right to request that a Judge make all the decisions in the case. Normally, however, the Family Law Magistrate will supervise the case as it makes its way through the Court and can grant a final divorce if the parties are in full agreement.
A unique feature of Maine divorce law is that if the parties have children under 18 they are required to participate in mediation if they are unable to reach a complete settlement of the case. If there are no minor children involved, mediation may still be held if both parties agree to attend or if it is ordered by the Judge.
Mediation is informal in the sense that the parties, their attorneys (if any), and a mediator meet in private conference rooms, without the customary Court rules regarding evidence and courtroom procedure. The mediators are hired by the Courts and have received training in getting people to compromise and resolve disputes. They cannot provide legal advice; the mediators try to assist the parties to reach reasonable agreements regarding the issues of the divorce.
Sometimes the parties are all in the same room during mediation, other times they remain in separate rooms with the mediator going back and forth. The parties get to decide this based on their level of comfort. Some mediators want the parties to sit down together but the parties have the right to refuse. Often mediation is successful in bringing about partial or even complete agreements. However, the parties are under no obligation to agree to anything.
If necessary, Maine law permits either party to seek a temporary Court order that will govern some of the parties’ conduct until the conclusion of the divorce. Temporary Court orders usually address which party will have the use of the marital home, responsibility for marital bills and debts, temporary child support and spousal support, parental rights and responsibilities for children, and responsibility for attorneys’ fees. A mediation session is usually required before the Court will conduct a hearing on a request for an interim order. Such a hearing will be like a miniature divorce trial dealing only with issues that must be resolved immediately.
If an agreement is reached through informal discussions, attorney negotiation, mediation or a combination of these efforts, the agreement is presented to the Family Law Magistrate or Judge for approval at a final uncontested hearing. If approved, which happens almost all the time unless it appears unfair or in some way unlawful, the agreement becomes the final order and the parties have, in effect, written their own Divorce Judgment. If an agreement cannot be reached on all of the issues a final hearing, or trial, will held at which the parties will each present evidence in the form of exhibits and witnesses in an effort to convince the Court to decide the disputed issues the way they each feel they should be resolved. The issues that the parties were not able to resolve by agreement will be decided by the Judge after the trial.
HOW LONG BEFORE IT IS OVER?
Under Maine law, the minimum period of time before a final divorce can granted by the Court is sixty days from the day the summons and complaint were served on the other party. However, most divorces take several months to work through all of the issues. Divorces in which there are disputes that need to be resolved by the Court, particularly issues related to minor children, can often take over a year.
Generally speaking, the best and fastest results occur when the parties are able to set aside the enormous amount of emotion involved (far easier said than done) and treat the divorce process as terminating a partnership that was not working anymore and deciding what is best for the children and how the assets and liabilities of the partnership are best divided.
If you were recently served with “divorce papers” or you think your own marriage is broken beyond repair and you would like further explanation and assistance in the process, we encourage you to contact one of our experienced family law attorneys to discuss your situation and determine if legal representation would be appropriate.