HOW DO I START MY DIVORCE OR MODIFICATION CASE?
Many of the people that come to my office for a free consult don’t even know where to start when it comes to starting a divorce proceedings, filing for a divorce or custody modification. The truth is, getting a case started is usually the easiest part. The more difficult part can be getting the final document at the end of the case that governs the divorce—this document is called the Decree, or Decree of Divorce. Everything you do in a divorce or modification case is designed to end with a Decree or Order of Modification, so the documents you file at the beginning of the case must also be written with the Decree in mind.
We start off a divorce case with a Petition. The Petition is referred to as a “pleading.” Pleadings are governed by Rules 7-11 of the Utah Rules of Civil Procedure. If you read through these before you prepare your Petition, you will be well on your way toward filing the documentation properly to get a divorce started. In our practice, we have filed so may divorce petitions, and encountered problems and nuances with the petition and the related documents, that we have developed the forms and have the knowledge to make sure the petition says what it needs to say to make sure the final decree at the end of the case is correct, and is what the client has asked for. The Petition must contain, “a short and plain statement of the claim showing that the party is entitled to relief and demand for judgment for specified relief.” See Rule 8 of the Utah Rules of Civil Procedure. You can find more here.
Note: All civil actions are governed by the Utah Rules of Civil Procedure, found here. Keep in mind that in domestic relations matters there are a specific set of rules that apply to Family Law found in Rules 100-108.
Petitions must conform to the formatting requirements of Rule 10, found here.
People who draft their own petitions run some risk. For example, there is case law that a non-lawyer is probably not aware of that has interpreted the rules of civil procedure governing pleadings. It is not always apparent when drafting a petition what problems may arise later in the case or even after the decree is issued by the court. An inadequate petition will yield an inadequate decree, which then may cause enforcement problems later-on in the case, and possibly even problems that can occur when marital property is divided, or things like child support or alimony become an issue. Again, there is case law relating to alimony that we have read and encountered that requires some specialized expertise when drafting the petition and the decree to avoid problems.
Because we have seen a good number of these problems, we know how to avoid many of them. That is why is generally is better to hire an attorney to draft the documents you need, even on an uncontested case. If you haven’t read the case law, it would be difficult for a non-lawyer (including a paralegal practitioner) to foresee what problems may arise from the use of inadequate, vague, ambiguous, or improper language in a pleading, motion, order, or decree. Uncontested cases can be reasonable in terms of their cost, especially when you compare it to the work, experience, and knowledge an experienced divorce and family law attorney has compared to a non-lawyer (or paralegal practitioner), and the convenience that the client has when using an attorney, compared to having to file documents the old fashioned way, or trying to use the general, one size fits all OCAP (online court assistance program) system to draft your documents. In other words, while an attorney may be expensive, it is actually a good value in the long run to hire an attorney. That being said, there are many people who do draft their own divorce documents and get a decree, which is fine. But, if you’d like to hire us to help you, we are here in Bountiful to meet with you for free to discuss if you would like to hire us to help you. The average cost of an uncontested divorce is around $1,500 to $2,500. Contested cases cost more. How much more depends on the reasonableness, stability, and expectations of the parties, and sometimes their attorneys.
Once the divorce petition is filed, you must obtain a summons from the court and serve it on the opposing party. Service must comply with Rule 4, found here.
An attorney can streamline the process of service. If you have an attorney, the attorney can issue the summons without permission from the court, and can hire a process server to serve the opposing party, and then electronically file the proof of service. After service, the opposing party has 21 days to file and serve an answer. See Rule 12 of the Utah Rules of Civil Procedure found here.
If the opposing party files and answer, the case will get on a litigation track with disclosures, financial declarations, and discovery to happen shortly after the Answer is filed. If no Answer is filed, the Petitioner can request a default divorce. The rules of discovery start with Rule 26 and go through Rule 37. The rules governing discovery and the case law interpreting discovery can be daunting. If you get into discovery and you need information from the other side, such as interrogatories, requests for production of documents, request to admit, or you need a deposition, custody evaluation, or psychological exam or vocational assessment, you should probably hire an attorney at this point who has gone through these kinds of issues before. Discovery and disclosure is a minefield that can easily be stepped upon.
This is how you start a divorce case in a nutshell. If you’d like to schedule a free consult to discuss whether you would like to hire us to get your divorce case started, feel free to call us at 801.312.9330. You can also set up a phone consult as opposed to an in-person call if you like.