In this article, you will learn:
- The steps leading up to a final decree
- Important steps taken during a potential trial
The petition needs to be filed, and usually, if children are involved in Idaho, there’s an order to focus on children class online. That’s a couple of hour-long classes that speak to the dos and don’ts of involving kids in the litigation between the adults, and how to deal with the children’s questions. It also tells people a lot about the different stages of child development and the needs of children during different stages of development. The idea is to try to keep the children out of the adult business so that you don’t have parents talking to their children about the divorce case, you don’t have them showing the children pleadings, and you don’t have parents talking badly about the other parent to the children. There is a joint restraining order that the courts of Idaho impose both with respect to spending in financial matters as well as children that apply to both parties that set up the ground rules during the divorce case.
The responding party has a 21-day period from service of a divorce petition in which to file an answer. If an answer is not filed, or an attorney doesn’t appear in the case for the responding party, you can prepare and file default documents with the court. At that point, a court can simply enter the default of the other party and enter a judgment based upon what was asked for in the petition. Some judges particularly where children are involved, will schedule the default hearing (where the party who filed the petition served it and there’s no answer) by Zoom. At the default hearing, the filing party has to demonstrate to the judge that the custody arrangement they’re asking for is in the best interest of the children, they have to demonstrate that their proposed property and debt division is fair and equitable under the circumstances of the case, and they have to demonstrate the child support was calculated in accordance with Idaho child support guidelines. If the judge finds those to be true, then they will sign the final judgment at that point, assuming that there’s no appearance from the other party.
Defaults are fairly rare, but they do happen. Assuming that a response is filed, if the response comes with a counter petition, then you have 21 days in which to file a response to that counter petition. And again, once that’s done, the court will schedule that initial scheduling conference. Typically, in some counties, the mediation order goes out at that point, or sometimes they wait until you have the conference to discuss whether mediation would be appropriate. Generally, the parties are required to mediate. Typically, that takes 45 to 60 days, and two or three sessions to find out if the parties are either going to make progress toward settlement or not, and the mediators are required to file reports with the court after each session to advise the court that the mediation is ongoing, that they have reached an impasse, or to otherwise update the court on mediation progress.
None of the information from the mediation is admissible in court. You can’t call the mediators to testify as a witness. The idea being that if you send people to mediation but they’re not free to think outside the box and maybe try a few things to see if they work for their family, if they’re going to get punished for that somehow, people are not willing to do that. So, in the mediation process, it’s made clear that none of that information comes back to the trial judge or is usable as evidence at trial. Typically, parties don’t realize that they’re not as far apart as they think they are because they can’t talk to one another or listen to the other side and accept that they have a right to differing opinion. Since I am also a trained mediator, one of the things I try to do with my clients when they are scheduled for mediation is have a meeting with them either in office, by Zoom, or over the phone. During this meeting I explain what’s going to happen in the mediation, what to expect. I try to give them an idea of the approach to mediation that will potentially lead to success. One of those things is I tell my clients that whether you agree with the other person’s position on any given issue or not, you must recognize and accept that they have a right to their position, even if you disagree with it. You don’t have to agree, you just have to accept that they have the right to an opinion, and to express it. If you can find out where they’re coming from, and if they can get into that same frame of line, that’s the time when these cases get resolved in mediation. If people can get into that space and make that their focus, then oftentimes, mediation is successful.
Assuming that parties are unable to resolve the case through mediation, the parties may do some discovery, depending on the issues in the case. Often, I will do discovery that’s based on potential domestic violence or other criminal behaviors, alcohol abuse, drug abuse. The same goes for the property and debt division issues. In every case both parties are required to exchange basic information with each other concerning their income for the current year and the past three years, information concerning payment of children’s expenses, provide a list of property and debt to be divided and their opinions as to the value of their property, as well as a list of potential witnesses, their contact information and a synopsis of their expected testimony. These are called Rule 401 Mandatory Disclosures.
However, we sometimes must deal with problems prior to the end of the case concerning who will stay in the family home, what the custody arrangement for the children will be during the case, or similar issues. We have a process called Motions for Temporary Orders which is used where the parties can’t agree on significant issue, we can file a motion for temporary orders by preparing affidavits that support our position, and the other side has a limited time, 14 days to respond. Then, the court may make an order based upon the written submissions. So, it’s important that those be done thoroughly and correctly, and that the court sees everything you want the court to know in evaluating your request. It’s unfortunate, but people tend to use their children as weapons and withhold them from the other parent. Often, accusations are made that maybe aren’t true as a justification for that. So sometimes, we must get to the bottom of those using that process.
Ultimately, however, we use the time between the scheduling conference and the pretrial conference to build our case by identifying potential witnesses who have information that we think the court needs to hear concerning custody or concerning finances. Then, we use the pretrial conference to deal with any last-minute evidentiary issues that come up, disputes, what are the mechanics of the trial going to look like and right now, we’re doing trials via Zoom. So, we must have the exhibits distributed to our witnesses that we want them to talk about different exhibits, as well as to the other side and to the Court in advance of the trial.
Finally, we have the trial process itself and then, post-trial. Sometimes there are legal issues that arise that a court decides where you don’t think the Court’s decision in your case is correct. If this is the case, once you get that judgment, you look at the idea of filing post-trial motions to reconsider or alter or amend the judgment, or perhaps appealing the judgment to a higher court. However, appeals are not common in family law cases because the judge has such wide discretion in deciding child custody and property and debt division issues. Child custody determinations and property division determinations are really based on the judge’s discretion, and if the Judge acts within the outer boundaries of that discretion and their decision is supported by substantial evidence, even if its conflicting evidence, then you’re not likely not to prevail on appeal. While appeals in family law cases are not all that common, I recently found myself in the United States Supreme Court for the first time in my career in a divorce and custody case. So, sometimes issues are presented in family law cases do get appealed and appealed and appealed again before a final decision is reached in a case.
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