Beginning Steps in a Divorce
Like most lawsuits, a divorce is begun with the service of a complaint and summons.
Unlike most other lawsuits, however, a “preliminary injunction” is issued in the beginning of a divorce action. This is mandatory under Maine law and meant for the protection of both parties. The preliminary injunction is a Court Order which prohibits either party from selling, transferring, concealing, disposing of and/or encumbering marital assets and non-marital assets without the other party’s written consent or a Court Order. The preliminary injunction also prohibits either party from discontinuing health insurance coverage that is already in place.
The Divorce Complaint is a document which sets forth the alleged grounds for the divorce and basic facts concerning the marriage and any children of the marriage. The labels “Plaintiff’ and “Defendant” only indicate who initiated the divorce; they have no effect on either spouse’s parental or property rights. In some states the terms “Petitioner” and “Respondent” are used. These terms more accurately reflect how the Court views each party to a divorce.
In Maine, a parent has a legal obligation to financially support his or her children until each child attains the age of eighteen, or graduates high school, whichever is later, however, age nineteen is the absolute cut off for this obligation if the child is still in high school. For divorcing or separating parents, the state has determined the actual monetary amount of this financial support in the form of Maine’s Child Support Guidelines, which is a table that provides a weekly child support amount based upon the combined annual income of the child’s parents.
When initiating a family matter involving children, each party must complete a Child Support Affidavit. This is a statement made under oath reporting each party’s gross income for the prior year and each party’s projected gross earnings for the current year. The weekly cost of providing health insurance coverage for the minor children, and the weekly cost of work-related childcare for children age 12 or younger are also reported on the Child Support Affidavit.
In Maine, a divorce cannot be finalized until the expiration of 60 days from the date the opposing spouse is personally served with copies of the Divorce Complaint, Family Matter Summons and Preliminary Injunction and, in cases involving children, Child Support Affidavit. In most instances service is accomplished by mail when the opposing spouse acknowledges service by signing and dating either an Acknowledgment of Service Form or, when restricted certified mail delivery is used, by signing the green U.S. Postal Service card. In the rare cases when the opposing spouse refuses to acknowledge service, a county sheriff may be engaged to accomplish in-hand service on the uncooperative spouse.
The spouse who receives the complaint is required by law to file a written answer or appearance with the court within 20 days. The answer may be accompanied by a “counterclaim” which is a complaint for divorce by the spouse filing the answer.
A spouse who does not file an answer risks having the divorce action proceed without his or her participation and input. The worst case scenario is that a divorce judgment will be entered that is unfavorable to the spouse who failed to participate.
A unique feature of Maine divorce law is that all divorcing spouses are required to participate in mediation if they are unable to reach a settlement on every issue in dispute.
Mediation is informal in the sense that the spouses, their attorneys, and a mediator meet in private, without customary court rules regarding evidence and courtroom procedure. Mediators are impartial “neutrals” who are trained in facilitating productive conversation between opposing parties with the goal of reaching settlement terms that are acceptable to both parties. The mediators will not arrive with detailed knowledge of your case and will not make the decision if you and your spouse are unable to work out an agreement. The mediator is not a judge and does not make any report to the judge. The mediation process is confidential and, with limited exceptions related to violence and future criminal activity, nothing said during mediation may be brought up at trial.
This office very frequently employs private mediators, which allows more flexibility in terms of scheduling and in selecting a mediator whose skills and demeanor are a good match for the case. Many of these are private mediators are also family lawyers who, because of their legal knowledge, can provide more direction and offer more creative solutions to resolve issues in dispute.
It is not the purpose or goal of mediation to reconcile the parties’ marital differences. The goal of mediation is for the parties to arrive at a Win-Win solution by being reasonable and fair to each other. More likely than not, the result parties get from a judge after trial is Lose-Lose; not only because it is rare for one party to get everything he or she wants in a judgment issued after trial, but also because the trial itself permanently damages the parties’ future ability to cooperate in a productive manner. When children are involved, this by-product of trial is truly tragic.
The cost of the mediation is $180 for a court mediator and up to $1,000 for a private mediator. The cost is usually shared equally by the parties.
If necessary, Maine law permits a party to a divorce to seek a temporary court order which will govern the parties’ marital affairs until the conclusion of the divorce. Temporary court orders usually address which spouse will have exclusive use and possession of the marital home, allocate temporary responsibility for marital bills and debts, award temporary spousal support and child support, and establish a residence and contact schedule for minor children. Except in very rare circumstances, a mediation session will be required before the Court will conduct a hearing on a request for a temporary order pending divorce.
At the pretrial/status conference, which usually takes place after mediation has occurred, the parties, or their attorneys if they are represented, report the case status to the magistrate or judge and indicate what the next step should be, such as a second mediation, exchange of additional discovery, an interim hearing, or another status conference.
If the parties believe scheduling a final contested hearing is the next step, this conference will be used to identify trial issues, duration, and deadlines. The result will be a pre-trial order setting the parameters of the trial and indicating the date by which the case will be ready to be placed on the trailing docket.
The trailing docket is a list of all cases which may be called in for trial during a specified period, generally 6 to 8 weeks long. The cases on the list may be called in at any time during the specified period with very little notice. Any case on the list that is not reached as a result of the court’s limited time resource will be carried to a subsequent list.
If an agreement is reached through informal discussions, attorney negotiations, mediation, or a combination of these efforts, a written settlement agreement will be prepared and presented to the judge for approval at the final hearing. If the judge approves the agreement, it becomes a part of the final divorce judgment and you have, in effect, written your own divorce judgment. If an agreement is not reached, the final hearing will be a trial at which witnesses will testify and the judge will decide all issues in dispute.
If the parties sign a waiver of appeal, the divorce will be final the day the decree signed by the judge is docketed in the Court’s record. The date the judge signs the decree is the effective date of the divorce.
If a waiver of appeal is not signed by both parties and submitted to the court, the divorce will not become final until the expiration of 21 days, the period during which a dissatisfied party may appeal to the Law Court. Once the appeal period expires with no appeal, the divorce judgment will become a final judgment. Generally, parties who resolve all divorce issues by agreement rather than by trial sign a waiver of appeal.
You may not remarry until your divorce is final. When you remarry, you will be asked to provide a certified copy of the divorce judgment. The copy we receive is not certified. You may take your copy to the court and for $5.00, they will certify it. If you lose the judgment, you can obtain a new one from the court.