Nelson & Booth
Domestic Relations Law in
In order to help you through the divorce process and in an attempt to answer some of the more common questions our clients have about domestic relations actions and the legal process, we have prepared this pamphlet to help explain the steps involved in the process.
There are three different domestic relations
actions that can be filed in
Divorce. The first kind of action is the most commonly known. It is the "divorce."
A divorce action requests that the marriage of the parties to the action be dissolved. A divorce presumes that the marriage of the parties is valid and that there will be no marital relationship between the parties after the requested order is granted. This action also requests that the court make orders regarding property and debt division, child custody, residency, parenting time, third party visitation and child and spousal support issues, if those are appropriately before the Court.
Separate maintenance. The second kind of action is a "separate maintenance" action.
The “separate maintenance” action is a form of what is commonly known as a "legal separation." A separate maintenance action does not dissolve the parties' marriage, but does request that the court issue various orders regarding property and debt division, child custody, visitation and support and spousal support issues. The separate maintenance action is basically a holdover from earlier times when divorces were more difficult to obtain. It is not commonly filed and may increase costs. If a separate maintenance action is filed by one party and the other party requests a divorce, the court must grant the divorce rather than the separate maintenance request.
Annulment. The third kind of domestic relations action is an "annulment."
An annulment can be requested no matter how long or short two people have been married, so long as the requirements of the statute are met. An annulment may be obtained if the marriage is either "void" or "voidable." In other words, the court may grant the parties an annulment if the parties either could not have become legally married in the first place (such as because they were too close in family relationship or there was some legal prohibition on the parties becoming married) — a "void" marriage — or if there was some significant fact about which one or both parties did not have knowledge that existed at the time of the marriage which would have led that person not to enter into the marriage or if there was some other defect in the parties' marriage other than a prohibition on their marrying — a "voidable" marriage.
long do I have to live in the state in order to file
a domestic relations action?
In order to file a Divorce action, either the
husband or the wife must have been a resident of the State of
Can I claim that the breakdown in my marriage was caused by the “fault” of my spouse?
Under the "no-fault divorce" system,
it is not necessary either to allege or prove grounds such as adultery,
extreme cruelty, abandonment, physical abuse, or any other "fault"
grounds, even though that conduct may have occurred.
If a divorce is requested on either the grounds
of "incompatibility" or on a fault ground, the court is required to
grant a divorce at the end of the case. Occasionally one spouse will oppose
the divorce or say that they will not give the other spouse a divorce or
state that the parties are not incompatible. While one spouse may object to
Is it important that I file a case before my spouse does?
There is no legal significance to whether the
husband or wife files the domestic relations Petition. There may, however, be
some procedural or tactical advantages to be the first person to file a
How do I start domestic relations proceedings?
The first step taken in starting any domestic action is the filing of the "petition." The petition is a simple, straight forward legal document that contains basic information for the court's information. The spouse who first files the petition is called the "Petitioner." The other spouse — the spouse against whom the Petition for Divorce is filed — is called the "Respondent." The following information is included in the petition:
If there are minor children of the marriage, additional information regarding the residence addresses and the persons with whom the custody of the children has been during the past five years is required to be included in the petition.
"Court costs" are the fees required by the courts in order to
file a court action. As of
At the time a petition is filed, the person filing the petition can request that various orders be issued by the court. These are called "temporary orders" and they govern the relations between the parties from the time they are entered until the decree is issued. If temporary orders are not obtained at the time of the filing of the petition, it is most likely that a motion and hearing will need to be scheduled in order for the court to issue such orders. There are many different orders that can be issued on a temporary basis including:
If you are seeking temporary support for your minor children and/or temporary support for yourself, a document called a "Domestic Relations Affidavit" will have to be completed by you and filed with the court. This Affidavit contains information about the incomes of the parties, the number of children the each of the parties has and ages of those children, your monthly expenses and debts and the amount of support you are requesting to meet those needs.
The Temporary Orders are usually delivered to
your spouse at the same time as the Petition for Divorce is delivered.
After the petition is filed, your spouse must receive proper notification that a divorce action has been filed. There are a number of ways your spouse can be notified that you have filed a divorce action. The manner by which your spouse is notified of the filing of the case depends very much on the relationship between the two of you when the petition is filed, whether you are living together and plan on continuing living together, whether there are minor children involved and other important factors.
"Answering" the Divorce Petition
When the petition is delivered to the spouse
who did not file the petition, that spouse has twenty days in which to
respond to the petition if he or she is served inside
If temporary orders were filed in the case, the responding party may request a modification in the orders entered. If the orders are not changed, the original orders are binding on the parties and a judgment may be issued for any failure to pay the amounts due under that order.
Planning for the Divorce
As soon as possible you should try to determine the nature and extent of your property, debt and financial holdings and gather together any documents containing that information. We will need this information in order to determine how the property should be divided or what recommendations would be in your best interest.
You should attempt to start dividing out your respective debts and obligations as soon as possible. Because the court usually looks at the date on which the petition for divorce is filed in determining obligations, you should try to keep your financial relations separate after that time, if at all possible. It may be best to open new checking, savings and charge card accounts and close or inactivate accounts on which both you and your spouse have together. This will make it easier for you and the court to make a fair division of debt at the end of your case.
One Lawyer or Two?
It is neither practical nor ethical for a lawyer to represent both parties to a domestic relations action. Although it is possible for only one person in a domestic relations action to be represented, we cannot represent both parties. When a domestic relations action has been filed there is an inherent conflict between the interests of those two people. As your lawyers, we can only advise you.
There are rare instances in which you or your spouse may have agreed on everything. In those cases, we may be able to draft the necessary documents setting forth that agreement; however, we will not be able to advise your spouse of the legal meaning of those documents. If your spouse has any questions, he or she should consult another lawyer.
An "uncontested divorce" is a divorce action in which you and your spouse agree on all aspects of the case, including who is to get what property, who is to pay what debt, whether or not there will be spousal support, how child custody, visitation and support will be arranged, the payment of attorneys' fees and costs and that both of you want a divorce. If you and your spouse have not agreed on all these matters, your divorce will be "contested." If your spouse disputes any of these matters, you do not have an "uncontested divorce" and a trial will be necessary.
The Divorce Trial
Every case, regardless of whether it is contested or uncontested will result in a "trial." If you and your spouse agree on most or all of the aspects of the case, the trial may be very short. If your case is uncontested or agreed, the trial will consist of a short recital to the judge of the agreements you and your spouse have made and a brief statement of how you and your spouse are "incompatible."
If you and your spouse do not agree on all
aspects of the case, evidence and testimony will be presented to the judge
assigned to your case and that judge will make a decision on how to resolve
those disputed issues. There is no jury in a divorce case in
Last updated 10/29/2003