| Divorce Proceedings differ from one country to | | | | for counselling and mediation is to try and create an |
| another and the length of time it takes depends on | | | | environment where the parties can hopefully |
| the nature and extent of the ancillary issues to be | | | | negotiate their own settlement. The success rate of |
| resolved as well as the court's caseload. However, in | | | | mediations is quite high and this in turn, reduces the |
| the United States, you're probably looking at a year | | | | number of cases the court has to deal with at a full |
| or more IF the matter proceeds to trial. | | | | hearing. In some jurisdictions, the parties must attend |
| I say "if" because the court would prefer the parties | | | | mediation or counselling BEFORE proceedings are |
| to negotiate their own settlement rather than have | | | | actually instituted. One exception to this is where one |
| the court impose its own decisions on the parties. | | | | party has been the victim of domestic violence. |
| Consequently, while divorce proceedings may well | | | | A party can normally have their attorney present at |
| need to be instituted, this does not mean that your | | | | mediation. The mediation is held on a "without |
| case will necessarily end up in a contested hearing (i.e. | | | | prejudice" basis, which means that what is said at the |
| trial). What the court process tends to do, in the | | | | mediation or conference can generally not be used in |
| majority of cases, is put pressure on both parties to | | | | court. The role of the mediator is not to stand in the |
| be reasonable and to leave out the emotional | | | | shoes of the Judge but rather, to act as a facilitator |
| content in their deliberations and negotiations. If | | | | (the goal being to try to help the parties reach |
| attorneys are representing both parties, then the | | | | agreement). |
| mounting legal fees are also likely to influence the | | | | The goal of requiring parties to attend co-parenting |
| parties to "work it themselves". Some lawyers also | | | | classes is to educate the parents on how to minimise |
| have a tendency to unnecessarily "inflame" the | | | | the impact of divorce on any child or children of the |
| situation, which is not helpful. | | | | marriage. In some jurisdictions, even the children of |
| WHERE CAN YOU COMMENCE DIVORCE | | | | the marriage (over a certain age) may be required to |
| PROCEEDINGS: | | | | attend a class to teach them skills to help them cope |
| Again, different countries and States have different | | | | with divorcing parents. This is not that widespread as |
| rules. However, it usually doesn't matter where you | | | | many courts are reluctant to unnecessarily involve |
| got married. Rather, to establish jurisdiction you | | | | the children of the marriage in the court and its |
| normally need to satisfy some residency, domicile or | | | | processes. |
| citizenship before you can file proceedings. In the | | | | In many jurisdictions, the court has its own Case |
| United States, the situation varies from one State to | | | | Management Rules so as to set down a timeline for |
| another although many States require that you must | | | | various steps to be done. Within these Rules is often |
| have resided in that State for about 6 months | | | | a requirement that a Case Review Conference take |
| immediately before instituting the divorce | | | | place. In some jurisdictions this may be called a |
| proceedings. In Australia on the other hand, provided | | | | Pre-Hearing Conference while in others it is may be |
| you are an Australian citizen or have been resident or | | | | referred to as a Conciliation Conference. It is usually |
| domiciled in Australia for the last 12 months, you can | | | | held in the presence of either the Judge who has |
| file for divorce in any registry of the Family Court of | | | | been assigned the case, or a Court Registrar. |
| Australia or even in any registry of the Magistrates | | | | The purpose of a Case Review Conference is to |
| Court. Unlike the United States, divorce and family | | | | discuss outstanding issues and to make Orders or |
| law is governed by a Federal Act rather than State | | | | Directions as to the discovery of relevant |
| Acts, a much simpler and straightforward process. | | | | documents, the delivering and answering of |
| Here, we are going to concentrate on the United | | | | interrogatories and the allocation of a hearing date. |
| States. The benefit of you initiating the proceedings | | | | THE INTERLOCUTORY STEPS OF DISCOVERY OF |
| is that you get to choose the jurisdiction. | | | | DOCUMENTS AND INTERROGATORIES: |
| THE INITIATING DOCUMENTS: | | | | Both parties will normally be required to disclose any |
| These vary but generally speaking, the person filing | | | | documents in their custody, possession or control |
| for divorce or a legal separation does so by filing and | | | | that are relevant to the issues in the proceedings. |
| serving a Summons and Petition for Divorce or Legal | | | | This is particularly so in the case of property |
| Separation. The Petition has two parts. The first | | | | settlement and/or maintenance matters. However it |
| section of the Petition sets out basic details such as | | | | can apply to other matters as well. Bank statements, |
| the identities and residential addresses of each party, | | | | wage records, property appraisals/valuations, |
| the date and place of marriage, the names and dates | | | | retirement /superannuation documentation etc. are |
| of birth of any children of the marriage, the | | | | common discoverable documents. Discovery is either |
| matrimonial assets and so on. The second section of | | | | done informally between the parties or on oath by |
| the Petition sets out the orders or relief being sought | | | | way of a sworn affidavit of documents. |
| by the person filing the document (eg. sole custody). | | | | In some cases, it may be necessary to seek orders |
| In some instances, a party may also need to seek | | | | for discovery on third parties. This is especially so |
| urgent orders (eg. where you are very concerned | | | | where your spouse may be hiding assets and/or |
| that the other spouse is or will dispose of matrimonial | | | | income. |
| assets). Be sure to get legal advice if there are | | | | Interrogatories are written questions delivered by |
| immediate matters that need to be urgently | | | | one party to the other for answering on oath within |
| addressed whether they involve domestic violence, | | | | a certain time. The answers are provided in writing |
| property or maintenance. | | | | by way of sworn Answers to Interrogatories. In |
| SERVICE: | | | | many jurisdictions, you either need the leave (i.e. |
| Normally speaking, the other party to the | | | | permission) of the court before you can deliver |
| proceedings must be served personally. Usually, the | | | | interrogatories or the number of interrogatories you |
| person serving the documents CANNOT be the | | | | can ask, as of right, may be limited in the absence of |
| petitioning Applicant. In other words, you have to get | | | | obtaining the leave of the court. A party may object |
| a private process server or someone other than | | | | to answering certain questions on a number of |
| yourself, to personally serve the papers on your | | | | grounds (eg. relevancy, unduly oppressive and |
| spouse. | | | | incrimination) but it is then a matter for the court to |
| DOUMENTS FILED IN REPONSE BY OTHER PARTY: | | | | decide if these objections are valid. |
| In the United States, the document filed in response | | | | OTHER COURT STEPS PRIOR TO HEARING: |
| to the initiating proceeding is normally an Answer and | | | | In order to narrow the issues at the hearing, either |
| Counter Petition. The time limit for filing this | | | | party may:- |
| document is usually 30 days in the absence of any | | | | (a) Deliver a Notice To Admit Facts or Request for |
| extension or waiver being granted by the other side. | | | | Admission. |
| INTERLOCUTORY APPLICATIONS: | | | | (b) Deliver a Notice To Produce Documents. |
| Given the length of time before the proceedings will | | | | These are fairly self-explanatory. |
| come before the court for hearing, it is often | | | | Either party may also take depositions by serving a |
| necessary to seek interim orders to deal with issues | | | | subpoena on either a party or non-party. The |
| during the intervening period. These might be matters | | | | purpose of a deposition is have the person give |
| such as domestic violence restraining orders, sole | | | | evidence on oath about matters and/or documents |
| occupancy of the former matrimonial home, interim | | | | relevant to the facts of the case. It is either held at |
| custody, access and maintenance orders (including | | | | the attorney's office or at some other location |
| perhaps an order that your spouse meet the house | | | | agreed upon. |
| repayments) and injunctions to prevent a party from | | | | EXPERT WITNESSES: |
| disposing of or otherwise dealing with matrimonial | | | | These may include psychologists, psychiatrists, |
| property. A hearing of this type is sometimes | | | | property valuers, accountants/business evaluators |
| referred to as Interim or Temporary Hearing or in | | | | etc. They are usually quite expensive, both as |
| some jurisdictions, a Pendente Lite hearing. To | | | | regards their fees for the preparation of reports as |
| proceed with such an application, you would usually | | | | well as for attending at the trial to give evidence and |
| file a Motion or Application along with a supporting | | | | be cross-examined. |
| Affidavit. | | | | SETTLEMENT: |
| The outcome of interim applications can be | | | | Parties can reach agreement at any time prior to trial. |
| extremely important when it comes to custody as | | | | Most people do, in which case they either enter into |
| there is reluctance by the courts to disturb the | | | | a Consent Order or sign a Marital Settlement |
| existing status quo. For eample, if you have had | | | | Agreement. |
| interim custody of the children for the preceding 12 | | | | THE HEARING: |
| months, this is likely to go in your favour if and when | | | | In a lot of jurisdictions, hearings are before a single |
| it comes to the final hearing. | | | | judge while some States have a trial by jury. In |
| MEDIATION. COUNSELLING, CO-PARENTING | | | | countries such as Australia, trial by jury has long been |
| CLASSES AND CASE REVIEWS: | | | | abolished. Of all the Family Law matters heard by the |
| In most jurisdictions, the court will insist that the | | | | Court, issues such as custody, visiting rights and child |
| parties attend counselling, mediation and where | | | | support may be re-opened at a later date if there |
| children are involved, co-parenting classes. The reason | | | | has been a significant change in circumstances. |