Phase Three of the Divorce / Legal Separation Process
Phase Three of the Divorce/Legal Separation Process is the “resolution phase.” This is the phase in which the terms of your divorce or legal separation are determined. This can be done in three general ways: by the parties themselves, through mediation, or by the Court.
The parties can work out the terms of their divorce informally amongst themselves. The parties will need to complete a Separation Agreement (JDF 1115) and a Parenting Plan (JDF 1113) if children are involved. Each of these forms outlines the areas in which agreements need to be reached. You will need to completely fill out these forms, have you and your spouse sign them, and submit them to the court.
Additionally, if child support and / or maintenance has been agreed to, you will need to submit a proposed Support Order (JDF 1117) outlining the amount of child support and/or maintenance to be paid. If you do not have any children or if both parties have attorneys, you can submit an Affidavit for Decree without Appearances of the Parties (JDF 1201). By doing so, you will not have to appear in court to get a divorce.
If you do have children and neither of you have any attorney, or if only one party may have any attorney, you will need to set your case for an “uncontested permanent orders hearing.” Each division in each county’s District Court handles setting these hearings differently. You should review the Case Management Order that the Court issued or contact the Family Court Facilitator or division clerk for the county’s District Court that your case is in for instructions on how to set an uncontested permanent orders hearing.
Finally, everyone needs to submit a proposed Decree of Dissolution of Marriage or Legal Separation (JDF 1116). You only need to complete the heading at the top of this form, as this is the form that the Court completes to acknowledge the terms of your divorce or legal separation that are outlined in your Separation Agreement and Parenting Plan in which the Court incorporates into the Decree and states that you are officially divorced.
If you and your spouse are not able to reach agreements on all issues in your divorce or legal separation, the Court will order you to attend mediation. Mediation is a process in which the parties meet with a neutral third party, i.e., the mediator, who will help the parties understand and consider options that they might not have considered on their own. Although, mediation is a requirement of the Court, any agreements reached are voluntarily entered into by the parties. Because a signed mediated agreement (often referred to as a Memorandum of Understanding or “MOU”) may be considered an enforceable contract, you should have a proposed agreement reached in mediation reviewed by an attorney prior to signing. You can submit the Memorandum of Understanding instead of the Separation Agreement and / or Parenting Plan. Additionally, you will need to submit a proposed Order adopting the MOU, a proposed Support Order (for maintenance and / or child support if applicable), a signed Affidavit for Decree without the Appearance of the Parties, and a proposed Decree of Dissolution of Marriage as outlined above.
If you are not able to reach an agreement through mediation, the Court will set your case for a Permanent Orders Hearing before the Judge or Magistrate assigned to your case. The Case Management Order issued by the court at the onset of your case will outline your pre-hearing deadlines, and sometimes the Court may issue a Trial Management Order later in your case with further deadlines and procedural requirements for the hearing. You are expected to meet all these deadlines prior to your hearing. At your hearing, you will be expected to present your case by presenting your testimony and any witnesses, providing exhibits, and arguing the law as it applies to your case. After the hearing, the Judge or Magistrate will make his or her findings of fact and issue an Order, or may take the matter under advisement and issue its Permanent Orders by electronic notification and/or mail to the parties.
In summary, the divorce or legal separation process can feel overwhelming, but if it is broken down into phases, it is a bit easier to understand. Remember that you are not alone through the process. There are many resources available to guide you through the process (see my November 4, 2020 blog article “Help, Where Can I Find Help and Guidance When Representing Myself in Divorce “).
Also, please do not hesitate to contact someone from our Law Your Way program or one of our intake personnel to request to speak with an attorney who can assist with answering any questions or guide you through this or any other phase of your family law matter.