THE PROCESS – THE DIVORCE ROADMAP
Most divorcing couples settle their case out of court through negotiation, with or without the services of professional mediator. However, understanding the divorce process and being prepared greatly strengthens your case during negotiations and is critical if you are unable to settle your case and must go to trial. The following is a brief roadmap of the divorce litigation process:
The case begins by one party filing a Petition for Divorce, identifying the issues to be resolved and that party’s initial position. After receiving service of the Petition, the responding party may file a written Answer with the court and may also file a Counter Petition. Parents of minor children are often required to file one or more written Parenting Plans setting forth their positions regarding custody and support for their children.
DISCLOSURES AND DISCOVERY
“Discovery” refers to the process whereby each party gathers information and evidence needed to prove his or her case. The bulk of the time in a lawsuit is usually spent during the discovery phase. Each party is required to provide the other with extensive disclosures, including:
- the names and contact information for any potential witnesses in the case;
- a copy of any relevant documents in his or her possession or control; and
- a comprehensive Financial Declaration setting forth the party’s income, assets and debts. (A sample Financial Declaration form is included at the end of this book.)
Parties often engage in additional discovery by sending written interrogatories and document requests to the other party, deposing one or more witnesses under oath, or engaging expert witnesses to provide analysis and testimony. Common experts used in divorces include child custody evaluators, real estate appraisers, accountants or business valuation experts, and vocational assessment experts.
Utah courts require parties to attempt mediation before getting a trial date. Mediation is a voluntary process whereby the parties meet with their lawyers and a neutral mediator. The mediator will try to find common ground and help the parties reach an out-of-court resolution. If the parties can agree to the terms of their divorce, the mediator will draft a settlement agreement to be submitted to the judge.
TRIAL AND JUDGMENT
Any unresolved issued must be tried in court before the judge. Court rules require detailed prior disclosures of any potential witnesses or evidence you intend to use at trial. The court may also require or allow you to produce a “trial brief” outlining the legal rules governing the disputed issues, the evidence you plan to present at trial, and your arguments to the judge. At trial, you present your evidence to the judge in the form of questioning witnesses and presenting documents, videos, audio recordings, etc. There are extensive evidentiary rules that must be followed by both parties when presenting evidence to the court. After both parties have presented their evidence, the judge will make a ruling on each of the disputed issues.