BEGINNING DIVORCE PROCESS AND UNCONTESTED DIVORCE

22 Dec

BEGINNING DIVORCE PROCESS AND UNCONTESTED DIVORCE

STEP ONE – INITIAL CONSULTATION

WHERE – East Side Office – 22408 Lake Shore, Euclid, OH 44123 or West Side Office – 13326 Madison Avenue, Lakewood, OH 44107.

WHAT DO I BRING – Yourself, any Income Info you have, if you have a Child Support Order Bring that, and if you have a custody order with the juvenile court bring that.

WHAT ARE WE DOING AT THIS CONSULTATION – We are first going to determine if a divorce is the best way to terminate the marriage. We will talk about the various documents that can be prepared (separation agreement, petition, and perhaps the need of a shared parenting plan). We will also need to think about the possibility of a contested divorce and how that would likely pan out.

Fee – No, this is a free consultation and you are not obligated to go any further.

How Long – 30 Mins to 1 Hour

STEP TWO – DOCUMENT PREPARATION CONSULTATION

WHERE – East Side Office – 22408 Lake Shore, Euclid, OH 44123 or West Side Office – 13326 Madison Avenue, Lakewood, OH 44107.

WHAT DO I BRING – Documents that I indicated to you in your initial consultation.

Fee – The initial fee will be due at this time. Depending on whether the documents are signed in the office as well as other factors, the court cost may be due at this time.

How Long – 1 Hour

WHAT IS HAPPENING – We will be preparing paper work for the divorce. Depending on the nature of the case the documents may not need to be signed by your spouse, and in one case not even you. However, the fewer agreements we have signed the higher the chance that the case become a contested divorce. Regardless of the other documents that may be prepared in the case, all cases have a complaint that (unlike dissolution) must state a ground for divorce.

If there is paperwork prepared that needs to be signed by the opposing party (separation agreement or shared parenting plan) we will need to decide how to get that signed. The spouse could come into the office or I could mail it out to them. In some cases the client will take the papers to the other party. It all depends on the reaction expected from the spouse.

STEP FOUR – CASE FILED

WHAT IS HAPPENING – Once the documents are signed we file the case with the court. At this point, I would need the court costs if it was not done at the Document Preparation Consultation. I often file by mail, but I also sometimes personally file them. I will also give you information about how to follow your case online.

STEP FIVE – SERVICE

WHAT IS HAPPENING – You may of heard of due process rights. They are found in our Constitution. One of the processes that must be duly observed is the service of process. What that basically boils down to is that the other party must be officially notified of the divorce by the court. If there is no service, then the case cannot proceed. If it does without good service any order that is issued afterwards can be voided at anytime thereafter (and I have seen it down years after the fact).

There are several ways to handle service. The easiest way is have the spouse receive the paperwork personally and sign a notarized waiver of service. The typical way service is performed is the court sends a certified letter with the complaint to the spouse. If the spouse signs it service is complete. If he or she does not, then the court will notify me and I instruct the court to send it by regular mail. As long as the letter is not returned service is completed.

Less traditional methods are sometimes needed in some cases. There are situations where the certified letter is not returned to the court or the spouse is purposely evading service. At those points I may want to be appointed as a process server in the case and then directly hand it to them myself (you cannot legally do this because you are a party in the case). Other times, we do not know where the party is, despite our best efforts. In those cases we publish the fact that there is a divorce in a news paper (such as the Daily Legal News). After six weeks, the service is considered complete. For some people who cannot afford the ad, it may be posted in the court for six weeks.

Posted and Published service restricts what the court and do about property. Also it is easier to overturn if it could be shown that you could of found where the person was.

Service needs to be perfected in six months or the case can be dismissed. It is often the most difficult part of the case.

STEP SIX – ANSWER OR UNCONTESTED HEARING SET

WHEN – After the completion of service, the party has 28 days to answer the complaint for divorce. If the party does not answer the complaint, the court will set a default hearing. If service happened without a hitch this could be about 45-60 days after filing the complaint.

WHAT HAPPENS IF MY SPOUSE FILES AN ANSWER – The case becomes a contested divorce. Contested divorces are relatively complex and cannot be adequately explained here. A divorce will become a contested divorce even if the answer comes in after the 28 days (courts liberally grant leave to file)

If there is no answer, then prior to this hearing we will need to prepare a decree of divorce. Depending on the jurisdiction I will need to get the decree approved by the court prior to the hearing. It is during this time I might require some additional documents.

If there are children involved, the parties will have to do a parenting course before the court hearing date. Failure to do so may result in the hearing be rescheduled. An exception to this occurs if a defending spouse does not do the course and there is no shared parenting plan, then the court will allow the decree, but require the defending parent to take the course before they enforce visitation rights.

STEP SEVEN – HEARING

WHERE – (CUYAHOGA COUNTY) Old Court House – 1 Lakeside, Cleveland, OH 44113 and (LAKE COUNTY) Lake County Court House – 47 North Park Place, Painesville, Ohio 44077.

WHO MUST COME – ONLY THE CLIENT MUST COME, BUT IF THE DEFENDANT DOES NOT SHOW, THE CLIENT MUST PRODUCE A WITNESS THAT CAN TESTIFY TO GROUNDS. A court will not hear the case unless there is a witness or the defendant and there are no exceptions to this.

WHAT HAPPENS IF MY SPOUSE SHOWS UP AND REFUSES TO SIGN THE DECREE – Typically the court will attempt to get the parties to settle. If that does not work, the court will usually give the Defending party time to get an attorney to file an answer. If the party does not come back to the rescheduled hearing and fails to do this, then the court will usually proceed with the uncontested hearing.

WHAT HAPPENS – The attorneys or the judge will ask questions pertaining to the marriage and the the decree (which may also have a separation agreement). If the court is satisfied that both parties are in agreement and that the decree or separation agreement is fair just and equitable (and, if there are children, that the custody arrangement is in the best interest of the children), the court will grant the divorce. In some jurisdictions the court will process the papers there (Cuyahoga, for example) but in other courts they mail it to you (Lake County).

FEE – Typically after the hearing, and if there are no outstanding court costs, I would ask for the hearing fee. This is the last fee in the case.

If there are any questions about this process do not hesitate to contact me.