Divorce 101 Handout (October 5, 2011)
Published to: 000114, 000116, A Small Town Lawyer's Perspective, Perspectives of a Small Town Lawyer, West Virginia Lawyer - Tips and Techniques
on October 5, 2011 8:25 pm
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Two clients called this week worried about their case management conferences, so here is an informal glossary which I now am handing out to new family law clients. This will become a blog post on Oct. 5, 2011; www.burtonhunteresq.blogspot.com.
1. The beginning document is filed with the circuit clerk. It is called a Petition.
2. The Answer must be filed within 20 or 30 days of service (by sheriff or publication, or certified mail).
3. The person filing first is the Petitioner, and the person answering is the Respondent.
4. The respondent may file a counter-petition with his/her own accusations, called allegations. It must be filed with the answer.
5. A “petition for a rule to show cause” is also called a contempt petition. It alleges violation(s) of a court order and must be approved first by the court with an “order filing petition and notice of hearing”.
6. In divorces, several documents must be filed with the petition:
a. An affidavit swearing to the truth of the accusations;
b. A proposed parenting plan if there are children;
c. A detailed financial affidavit of assets (their values) debts (their unpaid balances) and their income;
d. Most family courts expect a “one year and two year caretaking functions worksheet” setting out the litigant’s estimation of percentages of time (totaling 100%) of the caretaking functions performed for the child; and,
e. An application for services from the WV Dept. of Health and Human Resources’ Bureau of Child Support Enforcement (which handles child support and alimony payments.
7. For people who need help fast:
a. The party seeking relief can file a petition or motion for ex parte relief. If the attached affidavit is compelling, and the risk of irreparable harm apparent, the family court may grant some relief without a hearing. Examples are an order prohibiting taking the child out of state, restraining order, or even temporary custody. More often, the court will deny the immediate relief and set an emergency hearing; and,
b. A motion for expedited relief, where the party gets no immediate relief but asks for an early hearing, which most courts will provide.
8. Judge Sowa, Family Court Judge, of Upshur, Lewis, and Braxton Counties, complies with WV Supreme Court time-lines by issuing a Case Management Conference order. The Case Management Conference moves the case along via a short telephone interview of the parties or their counsel, or counsel’s paralegal. The court wants to know the mandatory parenting classes have been scheduled and all required documents filed. Often the court will send the parties to mediation with the “CMC Order”, set a status hearing date.
9. Other judges issue their own preliminary orders, for pre-mediation screening, the temporary hearing time and date, etc.
10. Mediation is covered extensively in my blog. It is a “non-adversarial form of “alternate dispute resolution”. The mediator has received formal training, and must have extensive experience.
11. A temporary order is just what it implies. The court issues an order on temporary custody, child support, alimony, possession of the family residence, possession of property such as a car, a constructive trust of the marital property, or a restraining order. It is very important and often is an harbinger of things to come.
12. A final order is also what the name implies. It is the final ruling of the trial court. It can also hold a party in contempt. It is appealable to the circuit court.
13. Sometimes a case is bifurcated. That is, the divorce might be granted or property awarded, but the custody case might be handled separately and sent to mediation or contested trial. There is no jury. The family court judge is judge and jury (fact-finder).
14. A property settlement agreement divides and assigns marital debt and property. WV, being “an equitable distribution state”, assumes 50%/50% ownership of the marital assets and debts.
15. An agreed parenting plan, or a court ordered parenting plan, followed by an order incorporating that plan into the court’s final decision covers:
a. Parenting time, overnight, day time, holidays, and vacations time;
b. Decision making; major non-emergency decisions, emergency decisions, and day to day decisions. Most fit parents have co-equal decision making;
c. Access to records, medical, dental, school, and juvenile;
d. Alternate dispute resolution, usually mediation; and,
e. Many other things are in a Permanent Parenting Plan Agreement, such as relocation of a parent, child support, medical insurance and support, alternate care providers, limitations on a parent because of drug or alcohol abuse, physical abuse, dangerous companions, mutual respect, no criticism of the other parent, smoking, custody exchange points and rules, and anything else pertaining to the welfare of the children.
16. Rules. Your case is governed by many rules:
a. Family Court Rules;
b. Rules of Civil Procedure, especially “discovery rules”;
c. Rules of Evidence;
d. Appellate Rules;
e. But not the Marquess of Queensberry rules;
f. And, as the drunken brawler told Paul Newman in the classic movie, “There ain’t no rules in a knife fight!” We all know what Paul did next. So, be careful out there.
I trust my clients who get this hand-out will be relieved that their lawyer and his staff are going to lead them through this maze! If you have a family law dispute and do not have a lawyer, beware! Sometimes the other side does not play by the rules!
This post was written by Burton Hunter