The Litigation Process: Understanding the Procedure of Your Divorce

Now that you understand the legal basics of divorce, it is also helpful to understand the process - the timeline of events in your case. The legal system can be very confusing to those who are not familiar with it. A lot of the names and concepts are things people have never heard of before, and confusion can make an already stressful process even more worrisome. Hopefully, reading the information presented here will help you to better understand the mechanics of the divorce process, and perhaps alleviate some stress. The process can be broken down into four major phases:

I: Commencement of the Lawsuit

The Complaint
The litigation process begins with the filing of a complaint. This means that someone has given papers to the court describing who the parties to the lawsuit are, and setting forth what they want from the court (here, a divorce). The person who files the lawsuit may sometimes be referred to as the plaintiff or complainant. The person 'being sued' may sometimes be referred to as the defendant or respondent.

Service of Process
The complaint must also be 'served' (given) to the person whom the complaint was filed against. A sheriff, constable, or a hired process server will seek out and deliver the complaint to the person being sued. the process server will also confirm in writing to the court that they delivered a copy of the complaint to the defendant.

The Answer
Once the defendant has been served with the complaint, an answer is usually required. The answer must be in writing and admit or deny all statements and allegations made in the complaint. The answer must be sent both to the clerk of the court where the lawsuit was filed, and the opposing party, within a certian period of time.

Counter-Claims
It is not uncommon in divorce cases for the person who has been sued to want to sue back. Rather than filing a separate complaint, the defendant need only incorporate a counter-claim into their answer. The original plaintiff will then need to file an answer to the counter-claim.

The Temporary Hearing
Shortly after the filing of the complaint is the temporary hearing. Because divorce can take a long time, the court intervenes early on in the process to ensure that the parties are taken care of while the divorce is pending. The temporary hearing can address all of the issues of the divorce including, custody, support, and alimony. The goal of the hearing is to maintain the "status quo" while the case is ongoing.


II: Information/Evidence Gathering and Trial Preparation

Discovery
After all the complaints, answers, and counter-claims have been filed and served, the discovery process begins. Discovery is the portion of the process during which the parties find out all of the information they want to know about the other side. The discovery process can vary greatly in length depending on the circumstances and complexities of the case. The discovery process itself can be broken down into several distinct elements:

• Interrogatories are written questions that one side asks the other. Interrogatories are often seeking to discover additional avenues of information. Questions may ask about witnesses the other party has or is planing to use, certain documents, or any proof or evidence supporting a claim or position.
• Requests for Production of Documents are pretty much what they sound like. One party requests the other to turn over relevant documents.
• Requests for Admissions may be used as well. In these requests, one side will present the other with facts and ask the other party to either admit or deny them.
• Depositions are formal interviews where lawyers ask questions of a party or a witness. A court reporter will be present at the deposition, taking down everything that is said to create a transcript. Transcripts of depositions may be used later at trial if the trial testimony of a party or witness is different than the responses given during the deposition.
• Subpoenas are a powerful tool that allow persons involved in a lawsuit to compel people and witnesses to appear for depositions or to turn over evidence. Subpoenas are useful when a party is seeking information from someone who will not, or may not be allowed to, cooperate. This is helpful in obtaining banking and employment records that bank and companies could not voluntarily produce.

Motions

Motions are used when a party needs the assistance of the court to get something done during the litigation process. Motions are most often a result of a failure of opposing parties to cooperate. One example of motion usage might be a motion to compel if one party has failed to respond to discovery requests.

Mediation

Mediation is a form of alternative dispute resolution where a neutral third party, the mediator, is hired by the parties to help facilitate a settlement agreement. The mediator is not a decision-maker - it is not the mediator's job to determine "who wins". Instead, the mediator will attempt to open up lines of communication between the parties and assist in reaching a mutually agreeable, workable solution. Mediation may be conducted at any time in the process prior to trial, but normally occurs after discovery but before trial. Mediation is virtually always more cost effective for the client versus going to trial. Additionally, mediation has the added benefit of allowing the parties to determine the outcome of the case, rather than the outcome being dictated by a judge.

III: Trial

Trial

Since most cases are ultimately settled, very few divorce cases make it all the way to trial. A divorce trial may last as short as half a day or as long as two or three days depending on the complexity of the case and the number of issues remaining for the court to resolve. At trial, both sides will call witnesses and introduce documents that support their positions to the court. Each lawyer has the right to question the other side's witnesses (via cross-examination), though it may not always be necessary. After all witnesses have been heard, and both sides have introduced all of their evidence, the Chancellor (what the judges are called in divorce court) will make a decision.

IV: Post-Judgment

Appeal

If you are unhappy with the Chancellor's decision you have the right to 'appeal' to the Mississippi Supreme Court to review the decision. Appeals are very expensive and slow (usually taking a couple of years). If you decide that you do want to appeal though, it is important to let your attorney know, because the appeal must be made within thirty days of the court's decision.

Modifications
Even after a final judgment has been entered in your case, child custody as well as child support and alimony obligations may be later modified if a material change in circumstances occurs. A modification may increase, decrease, or terminate alimony or child support payments, or may alter who has primary custody of children.

That, in a nutshell, is the litigation process. I know it is a lot to think about and keep track of - that is part of why it is crucial that you hire a divorce and family law attorney to represent you. I hope you know more now about the legal process than you did before, and that your new found knowledge will help provide you with a sense of confidence about your case - knowledge is power.