A divorce case, like every other type of civil lawsuit, must be started with a summons and complaint which is served on the opposing party.
Divorce complaints are usually titled petitions, rather than complaints.
Thus, the person initiating the divorce is designated the petitioner and the other spouse is designated the respondent.
Service must be accomplished according to Rule 4 of the Utah Rules of Civil Procedure. The Petition must be served within 120 days of the filing date, unless the Court orders otherwise for good cause. If it is not timely served, the Court will dismiss the case without prejudice, meaning it can be refiled.
Service must be accomplished by an individual who is not a party or an attorney on the case and who is over 18 years of age. This is usually a constable who serves legal papers for a living, either full-time or part-time.
Service may also be accomplished by means of certified restricted mail signed by the person to be served.
The Petition must be served along with a Summons. The current rule provides that the person being served has 21 days to respond to the Petition (for many years, this used to be a 20 day rule), or 30 days if they live out of state.
The petitioner must then file proof of service with the Court.
The respondent files an answer and the petitioner may file a reply.
Then there is a process known as discovery. Details on the rules of discovery are a topic for another post. In a nutshell, the purpose of discovery is to allow both parties to obtain all the information they need in order to either settle the case completely or proceed to trial.
Part of the discovery process involves the exchange of initial disclosures pursuant to Rule 26 of the Utah Rules of Civil Procedure. This involves disclosure of relevant information such as witnesses, documents and exhibits that may be used at trial.
For domestic relations matters, Utah also has Rule 26.1, which sets forth the financial disclosures each party must make to each other. These disclosures, as well as the initial disclosures, are required regardless of whether or not there is a request from the other party.
The Petitioner must disclose to the respondent his or her initial disclosures and financial disclosures within 14 days after the filing of the respondent’s answer. The respondent must disclose to the petitioner his or her initial disclosures within 42 days of the filing of an answer to the petition, or within 28 days of filing an appearance in the matter, whichever is later. For Rule 26.1 financial disclosures, the respondent must disclose to the petitioner his or her financial information within 28 days after the petitioner’s first disclosure, or within 28 days of the respondent’s appearance, whichever is later.
The parties will each file with the court certificates of service of the initial and financial disclosures upon the other party. This lets the court know that the parties are following the rules of procedure and protects each party from any potential claim that his or her disclosures were not timely filed.
Each party may request information, or discovery, from the other party in the form of interrogatories (written questions), requests for production of documents and things (such as electronic information), and requests for admission. These must be answered by the other party under oath and affirmation within 28 days of service of the discovery request (for many years this was a 30 day rule).
Each party may take depositions as well. Depositions usually takes place in an attorney’s conference room with a court reporter present. The potential witness or party being deposed answers the attorney’s questions under oath. The court reporter transcribes the proceeding. The purpose of a deposition is to obtain the witness’s testimony in advance of trial in order to prepare for trial. The deposition may also be used as a means of impeaching the witness’s credibility at trial if his or her testimony changes.
Oftentimes, one party or the other will seek temporary orders (or, pendent lite in Latin lingo), particularly where there are pressing matters such as child custody, child support, alimony, and restraining orders needed. These orders usually govern the case during the pendency of the matter while discovery proceeds and the parties prepare for trial.
One component of discovery that occurs frequently in divorce cases where the parties have minor children is a custody evaluation. A custody evaluator is a neutral third party trained in child psychology, usually holding the academic credentials of either a Phd or an LCSW. Utah has established uniform rules for custody evaluations, set for at the Utah Code of Judicial Administration, Rule 4-903.
The evaluator will conduct interviews, review documents, perform psychological testing, and observe both parents’ interactions with the minor children, in order to make an expert recommendation regarding what in her opinion is the best custody and parent-time arrangement for the children.
Once necessary discovery is obtained, the parties proceed to mediation. This is where the parties and their attorneys sit down with a qualified mediator, who is a neutral third party trained in alternative dispute resolution. The mediator attempts to facilitate an agreement between the parties. The parties are not required to reach any agreement, but both are required to participate in good faith. Oftentimes in mediation the parties are situated in separate rooms while the mediator conducts “shuttle diplomacy”, going back and forth between the rooms with offers and counteroffers until an agreement or an impasse is reached.
Most, but not all, cases will settle at mediation.
If mediation is unsuccessful, the case proceeds to trial. The petitioner files a certificate of readiness for trial with the court and requests a pre-trial conference. A pre-trial settlement conference is usually scheduled with the assigned domestic relations commissioner. (For more on domestic relations commissioners, see my posts from August 20, 21, and 25, 2015).
The purpose of the pre-trial settlement conference is to narrow down the issues for trial and to see if there are issues that can possibly be settled before proceeding to trial. If a custody evaluation has been performed, there is a “Rule 4-903 settlement conference.” Usually this takes place at the courthouse under the somewhat hands-off supervision or guidance of the commissioner assigned to the case. The custody evaluator is present at this conference and presents to the parties her recommendations for custody and parent-time. It is often advisable to have a mediator present at this meeting as well, in order to facilitate a settlement.
If the case, or some portion thereof, does not settle at the pre-trial settlement conference, the domestic relations commissioner will then certify to the Judge which issues will be heard at trial. Sometimes the Judge will require a separate pre-trial conference of his or her own, in order to set the ground rules for the trial.
There is usually a pre-trial order which the parties must follow, which sets forth the manner and time in which each party must exchange witness and exhibit lists.
Then, the matter is ready for trial. Divorce cases are heard by a judge and not a jury.
In my humble but correct opinion, it is often helpful to consult with an experienced attorney in order to navigate the intricacies of the rules of procedure in a Utah divorce case.
This material should not be construed as legal advice for any particular fact situation, but is intended for general informational purposes only. For advice specific to any individual situation, an experienced attorney should be contacted.