The Petition, Answer and Counter-Petition serve to outline the opening position of the parties on the issues of the division of property, spousal support, and if they have children, legal custody, physical custody and child support.
When parties begin so far apart in the process of divorce, one or both parties may need to request temporary relief from the court until the final dissolution of the marriage – how will custody of the children be handled? Who will have possession of the marital home? Who will pay for all the monthly expenses and support the children? How will property be safeguarded so one spouse does not deplete marital assets? These issues are resolved through a motion pendente lite, or PDL motion.
Also, parties will engage in discovery to be sure of the facts, to see if one party might be hiding information from the other. Depositions – testimony given outside of court but under oath – may be taken.
Sometimes when custody of children is involved and the parties seem heated, the trial court may appoint a guardian ad litem – an attorney who will represent the interests of the children. If a party alleges abuse, the court must appoint a guardian ad litem. The parties are responsible for paying the fees of the guardian ad litem.
As the process continues, either the parties will reach an agreement on all disputed issues themselves – sometimes with the help of mediation – and they will sign a Marital Settlement Agreement and perhaps appear briefly in court to finalize the dissolution. If the parties cannot agree, they will proceed to trial, where evidence will be presented, testimony taken and the family court judge will decide all of the disputed issues by entering a Judgment of Dissolution of Marriage, which will divide all property, award custody and determine whether and in what amount child or spousal support should be ordered.
This process – from filing the Petition to the entry of Judgment – can take anywhere from six months to more than a year.
If one or both parties feel the Judgment fails to properly address the issues, misstates the law or facts, one or both parties may file post-trial motions to amend the Judgment or seek a new trial.
Once the trial court rules on the post-trial motions, any party that still feels the Judgment is in error in one or more respects may, within ten days of the Judgment becoming final, file a notice of appeal in the appropriate district court of appeal. An appeal takes six months to a year, requires the filing of the record from the trial court, including transcripts, and briefs filed by each party dealing with the alleged errors in the trial court. The appellate court may hear oral argument from the parties and will afterward issue an opinion, which usually follows in one to three months.
If a party has been served with a Petition but fails to appear in court and file an Answer, that party is said to be in default, and the court can proceed to enter a Judgment in the absence of that party. If you are the party in default, you may under certain circumstances and within a certain period of time be able to set aside the default judgment (it would be as if it did not exist) and have a full hearing where you present your side of the case.
If, after the entry of a final Judgment, one party fails to comply with the terms of the Judgment (pay spousal support as due, execute certain title documents, for example), the aggrieved party may file a Motion to Cite and Punish for Contempt. Aside from getting relief in the form of compliance with the Judgment, the aggrieved party may also receive interest on past-due amounts and attorney fees.
After all of the above has happened, the only form of “relief” available would be a modification with regard to custody or support (child or spousal). Property judgments are final and not modifiable. In order to file a Motion to Modify, the party must be able to claim a change in circumstances – new facts which have arisen after the entry of the original Judgment.
Getting Help in the Divorce Process
As you can see from the overview, the process is not just a short set of simple, self-executing rules, but involves many complex and often difficult questions of proof. Only a skilled and experienced attorney can properly advise you as to your rights with regard to custody, property and support, and protect those rights in a legal proceeding.
At The Marks Law Firm, L.L.C, we have over fifty years of combined experience handling family law matters. We help individuals understand their rights with regard to all issues, including child custody, child support, spousal support and division of property, motions for contempt, appeals and motions to modify.
Time to Act
Time is of the essence. As soon as you select The Marks Law Firm, L.L.C. to represent you, we will immediately put our considerable experience and resources to work on your case. The sooner we can review the necessary information, the sooner we can formulate a strategy for your unique circumstances, helping to insure the best possible outcome.
Your future is at stake. Make the right call and contact us today at (314) 993-6300. There is no charge for the initial consultation – and the only obligation you have is the one you have to yourself to gain the best representation possible.
Contact The Marks Law Firm, L.L.C.
For an initial consultation with an experienced St. Louis divorce attorney, contact us at 314-993-6300. We will set up a telephone consultation, if necessary, and will meet with you on Saturday upon request. Visa, MasterCard, Discover and American Express are welcome.