Property Division FAQ

The following list provides information about some of the procedures that may be taken in your family law case. Please speak to your attorney if you would like more information. This list is intended to point out some of your major rights. It does not include everything. This list also informs you of some time constraints in family law cases. If you want more information, please ask as early in your case as possible.

Petition. The person who initially files the divorce petition is called a Petitioner and the other party is called the Respondent. The Respondent in an action has the right to file a counter-request seeking relief. If no counter-pleadings are on file, the Petitioner has the right to dismiss his/her cause of action at any time prior to the final order.

Ex Parte Restraining Order. At any time, but most often at the beginning of a law suit, either party can request a restraining order to prohibit certain actions by the other party. Most restraining orders are granted "ex parte" which means that they are granted without the other party having an opportunity to object. An ex parte restraining order expires after 14 days unless it is extended by court order. Most often a restraining order is used to prevent the other party from taking children outside the court's jurisdiction or to prevent the other party from disposing of community assets or changing the character of community assets. However, a restraining order cannot prevent the other party from spending for his/her ordinary needs, including attorney fees. Enforcement of a restraining order will require a court hearing.

Temporary Orders. At any time, but most often at the beginning of a law suit, either party can request the Court to issue temporary orders. Temporary orders can designate child custody, require a party to pay child support to the other party, designate possession periods of the children, designate which party can use property (including the homestead) while the action is pending and provide for payment of spousal support and bills. Temporary orders can address many other issues. Temporary orders can be modified during the lawsuit. However, the entry of a final order (including an order dismissing the lawsuit) ends the effectiveness of the temporary orders. Furthermore, most rights under temporary orders must be enforced while the temporary orders are in effect or they are lost. Again, if you have any issue which needs to be addressed while your case is pending, discuss the possibility of seeking temporary orders with your attorney.

Jury Trial. In a family law matter, the litigants have the right to a jury trial as to some, but not all, of the issues in the case. For example, a jury's verdict as to custody is binding while a finding regarding possession periods is only advisory to the judge. Many property issues can be determined by a jury. If at any time during the litigation, you believe you might want a jury trial, discuss this with your attorney immediately. A request for a jury trial must be made in writing and filed with the Court at least thirty days before a scheduled trial date.

Enforcement Request. If a Court orders a party to do something or to refrain from doing something, the judge has the right to enforce the Court's order. Certain violations of a court order can be enforced by contempt (jail) or by monetary fines. However, if your spouse has violated a court order, your attorney must prepare and file a motion to enforce the violated order, and set the matter for a hearing. Again, discuss any problems with your attorney as early in your litigation as possible.

Discovery. While a lawsuit is pending, each side has the right to acquire information from the other party. The most common means for acquiring such information are as follows::

•1. Inventory. An inventory is a document that lists all property owned by the parties, including separate property. Most courts require each party to file a sworn inventory prior to the final hearing. Even in uncontested cases, it is advisable for each side to prepare and file sworn inventories.

•2. Request for Disclosure. A Request for Disclosure obligates a party to provide basic information regarding the lawsuit.

•3. Interrogatories. Interrogatories are written questions which the other party must answer under oath. The answers are due thirty days after the interrogatories are served on the party or his/her attorney. Sometimes the interrogatories ask for information which does not have to be provided if a proper objection is made. All objections must be made in the response and served on the other party within the thirty day period. If the objection is not timely made, the party can be required to answer the question. If we are serving discovery requests on your opposing party, we will likewise need adequate time to prepare those questions and to have them served on the opposing party well in advance of thirty days before the trial date.

•4. Request for Production and Inspection of Documents and Tangible Things. A party can request the other party to produce documents and other items for inspection and copying. As with interrogatories, a response, including any objections, is due within thirty days.

•5. Deposition. A party to a lawsuit, or a witness, can be required to orally answer questions asked by one of the attorneys in a deposition. At a deposition, both parties and their attorneys are present. The witness is sworn in and then questioned. Normally a court reporter is present to take down the testimony. Afterwards, the court reporter prepares a transcription. Sometimes a videotape is also made. It is possible (although usually not advisable) to forego the expense of a court reporter by making only a video or audio recording. If we take a deposition on your behalf, we will hire a court reporter on your behalf, unless you discuss the other possibilities with us prior to the scheduling of the deposition.

•6. Motions for Mental or Physical Examination. Typically, where custody of minor children is at issue or the parties or if the parties make a request, the Court may compe l that all or some of the parties submit to a psychological, psychiatric or other mental evaluation or a social study.

Mediation. Mediation is a process intended to help you resolve your case without going to trial. In mediation, the parties and their attorneys meet with a mediator, usually at the mediator's office. Sometimes mediation begins with everyone begins in the same room. At some pont in the mediation (sometimes from the very beginning) each party and his/her attorney are in separate rooms and the mediator going back and forth between the rooms. A mediator is a neutral third party who does not impose his/her own opinions on the parties. The mediator relays offers and counter-offers. The mediator tries to keep the litigants focused on the true issues in the case, make suggestions, and point out (in private) any possible weakness in a case. Mediation isan excellent way to settle a case. Using mediation usually (but not always) results in lower attorneys fees for the litigants than does directly proceeding to trial.

Amicus Attorney. Sometimes if the parties disagree about the best interests of the child the Court will appoint an attorney to advise the court as to the best interests of a child. That attorney is called an amicus attorney. Typically, the parents are ordered to pay the fees of the amicus attorney. The amicus attorney is independent of the parents and takes an active role in the case.

Social Study. In custody disputes, your attorney may suggest that a social study might benefit the Court in making a custody determination. A social study is a report prepared by a counselor, social worker or psychologist to give the judge (or jury) a neutral, independent evaluation of the parents and children in a child custody situation. It may also be used in a case involving visitation disputes. The preparation of a social study typically requires six to eight weeks to complete and generally costs approximately $1,000 to $3,000 per party. Thus the request for a social study should be made early in the litigation and costs should be considered.

Residency Restriction. In custody disputes, the Court will frequently impose a residency restriction on the children which directly impacts the residency of the primary conservator. If you are seeking to be named the primary conservator you should discuss the implications of this restriction with your attorney.