A Guide to the Divorce Procedure: The Initial Phase
By Daniel H Moss, Attorney
The divorce procedure can be difficult to maneuver. With so many legal procedures and terms, it can be difficult to get a full and clear picture of where you are headed, when and why. The following guide will provide some clarity into the initial phase of the divorce proceedings.
Plaintiff and Defendant
The plaintiff is the party who starts the lawsuit and the defendant is the person against whom the suit is filed.
All proceedings in the divorce matter are finally resolved by the Circuit Court in which the case is started.
Friend of the Court
The Friend of the Court is an arm of the court, which is used to assist the Court. It usually makes recommendations as to alimony, support, custody, and visitation rights. It also collects and distributes alimony and support payments, and may also seek enforcement of court orders dealing with support, visitation rights, and alimony. The court may use the Friend of the Court for other miscellaneous duties.
Complaint and Summons
Once a complaint is filed, a written notice or summons is served to the defendant to notify him or her of the filing.
Answer to the Complaint
After the Complaint and Summons is served, the Defendant may file an Answer to the Complaint, which is, in effect, a paragraph-by-paragraph response to the Complaint.
Contesting the Case, Order of Default and/or Counterclaim
Once the answer is filed, the case is contested. If the Defendant takes no action, an order of default is entered, indicating the Defendant’s lack of response, and the matter becomes an uncontested divorce case. The Defendant may desire not only to answer the Complaint, but desire to file his or her own Complaint. This is known as a Counterclaim and the Plaintiff must answer this.
A divorce cannot be granted in less than 60 days. If there are minor children, the parties must wait 180 days, however, 120 days may be waived upon a proper showing of circumstances warranting same. No divorce is granted without a court hearing as to the truth of the statements made in the Complaint. A witness is not necessary if the matter is uncontested when heard by the Court.
Temporary Orders for Expenses, Injunctions, Personal Protection Orders, Etc.
Temporary orders for custody, support, alimony, mortgage payments, medical payments, visitation, injunctions, and other relief may be requested at any time during the time you start your case and a Judgment of Divorce is entered. A temporary injunction restrains a party from doing something. There are injunctions dealing with violence, although these are now embodied in Personal Protection Orders (PPO). There is also an injunction restraining a party from selling, disposing or dissipation of assets. Other types of injunctions may be requested.
Generally, alimony and support are based on needs and ability to pay. The lifestyle of the parties is also taken into consideration. In regard to child custody disputes, there are a number of factors listed in the Child Custody Act. The procedures and preparations of such a case are very involved and should be discussed in detail with your attorney.
The court may also award temporary attorney fees to assist a party with their costs of obtaining counsel. This relief is usually obtained in the same way as any other motion and may be part of a motion requesting other relief.
This information is intended to provide some general information about divorce proceedings. It is not intended to answer specific questions about a particular case, as each case is different.
If you have questions or are looking for advice about your specific situation, please contact me directly at 248.855.5656 or [email protected].