After deciding on a lawyer, and having the attorney decide on you, the next most important step is to understand the process. Your understanding of the process, and avoiding the “Oh, I did not know that was an option” conversation, is crucial. If you do not understand the process, then you might not be able to assist your case. And make no mistake: it is your case, and your lawyer needs your help.
There are two parts to understanding the process: 1) understanding language and terminology; and 2) understanding procedure. This post focuses on language, because if you do not speak the language, you can’t understand what is happening in your case.
Some basic terms in dealing with a divorce from beginning to end are:
Complaint for Divorce: A Complaint is a document filed with a Court asking for some form of relief. A divorce complaint would include asking the Court to dissolve the marriage, determine issues regarding custody, parenting time and support of children (if any), determine if spousal support is to be paid, and if so by which party, in what amount and for how long, dividing assets and allocating debts, and payment of attorney’s fees and costs.
Pendente Lite: This is Latin meaning “pending litigation”. Lawyers use latin to make them seem knowledgeable. Nevertheless, this is a hearing for temporary support, custody, and other relief until the court can rule on the final divorce
Child Support Guidelines: The Virginia Child Support Guidelines determine how much child support is paid, and by which parent. In making that determination we look at the parties’ incomes before taxes, the number and ages of the children, costs for insurance, parenting time, and other factors specific to your case to determine what child support should be paid. The worksheet is the rendition of that calculation.
Summons/Service of Process: The Court needs verification that the respondent (non-filing party) has notice the divorce has been filed. The summons and service of process is that verification and puts the other party on notice the case is pending and requires them to act.
Scheduling Order: Most Courts will issue a scheduling order. A scheduling order establishes dates to complete discovery, identify witnesses and experts for pretrial and trial. This does not mean we are set on taking a case to trial, but rather we want to establish a date now, even if it is months away, so we can work on settlement, but at the same time have a date certain the case will be completed.
Discovery: Discovery is the process of determining what the evidence will be in a case. Discovery can be formal or informal, but generally requires each side to disclose witnesses and exhibits they will present at trial. Discovery ensures each party knows the facts of the case, each party can negotiate in good faith, and if they proceed to trial, there are no surprises. Discovery is normally accomplished by issuing Interrogatories (written questions) and Requests for Production of Documents.
Mediation and/or Judicial Settlement Conference (JSC): Settling a case is usually best.. The most common we can settles case is through a JSC or mediation, where the parties meet with a retired judge or trained mediator to discuss their case and possible settlement options. Most cases settle with through mediation or a JSC,
Settlement Agreement: If you reach an agreement to settle the issues in your case, that agreement must be reduced to writing and signed by the parties. The agreement is then presented to the Court and becomes enforceable as a Court order. A settlement agreement should include issues such as adopting an agreed parenting plan, provisions for child support and/or spousal maintenance, how property will be divided, how debts will be paid, and the how the provisions of the agreement will be accomplished.
Pretrial Conference: If the case is to proceed to trial a pretrial conference is required. The conference is a hearing before a judge which establishes the issues of the case, the witnesses and exhibits for trial, and resolves any remaining pretrial issues. This hearing usually takes place a couple of weeks before trial.
Trial: Simply put, a trial is the procedure where both sides offer evidence (witnesses and exhibits) and the Court issues a ruling. Trials can vary with opening statements, closing statements, and the filing of briefs with the Court, but most trials follow the pattern of presenting a Judge with evidence so that a ruling on the issues can be made.
Final Decree of Divorce: The decree is the document granting the divorce, and approving the settlement agreement, or reflecting the order of the judge after a trial, the decree adds to the parties’ agreements by making them enforceable as Court orders.
There are more terms that could be specific to your case, and your lawyer can help you with those terms. The important thing to remember is that you continue to ask, and if you do not understand, ask again. If you do not understand the terminology you will not be able to make decisions that are best for your case.
Richard E. Garriott, Jr. is a member of the Virginia Beach law firm of Garriott | Maurer, PLLC, where he handles a full range of family law matters, including divorce, child custody, property settlement and premarital and postmarital agreements. Mr. Garriott accepts clients throughout southeastern Virginia.
Mr. Garriott is a Fellow in the American Academy of Matrimonial Lawyer’ s, a fellow in the International Academy of Family Lawyers, as well as a Fellow In the Virginia Law Foundation and the American Bar Association Foundation. He was also named as a member of the 2009 class of Virginia’s Leader’s in the Law. Along with the top rating of AV Preeminent* from Martindale-Hubbell, he has been included in The Best Lawyers in America** and was selected by Virginia Business magazine in since 2011 as one of Virginia’s Legal Elite in the family and domestic relations category. He has been included in The Best Lawyers in America since 2013. He has been named as one of Virginia’s Top 100 Lawyers by Superlawyers since 2015.
Mr. Garriott is a member of various bars and associations, including the Virginia Family Law Coalition and is a Past President of The Virginia Bar Association. He is active in the I’Anson-Hoffman chapter of the American Inns of Court. Having a strong belief in giving back to his community, Mr. Garriott donated his time on the advisory boards for the Mission of the Holy Spirit Shelter and the Seton Youth Shelter to help inner-city families and at-risk youth, and served as Chairman of the City of Virginia Beach Board of Zoning Appeals.