By: Stephen J. Plog
As a Denver divorce lawyer, I regularly meet with people in need of help with their family law cases. With each meeting, I have to be conscious of each person’s level of awareness when discussing the legal aspects of their case. After almost twenty years of practicing family law, it’s easy to forget that to the person going through their first introduction to the world of divorce, the common phrases that attorneys use may sound like complete gibberish unless explained. The soup of divorce related terms which might cause confusion for the person going through divorce for the first time is no more intelligible than if I were talking to a computer technician or mechanic about the specific parts of a computer’s CPU or the specifics of how a to rebuild a car engine. Below I will list some of the common terms one might hear when going through a divorce, with the intent of educating so as to help readers make sense of some of the words they might hear, yet not fully understand.
Petition: A petition is the initial document filed in a divorce case. It lets the court know a brand new case is being started. For divorce, the petition is called a “petition for dissolution of marriage.” In a custody case it would be called a “petition for allocation of parental responsibilities.” Petitions must be personally served upon the other party, along with a “summons.” Once petition and summons are personally served, the court has jurisdiction over the second party to the case.
Decree: The decree is the document ultimately signed off on by the court indicating the the two spouses are officially divorced. For divorce, the decree would be called a “decree of dissolution of marriage.” A decree can also be entered in a legal separation case and would be a “decree of legal separation.” People often mistakenly call their final, substantive divorce orders or final agreement their “decree.” The decree will generally set forth that the parties are divorced, that they should follow the terms of their final orders, which are incorporated into the decree, and will also contain any name change information should the wife seek to have her maiden name destroyed. The decree does not set forth the substantive terms the parties are to follow tied into property, support, or child custody.
Motion: A motion is a document filed with the court which makes a specific request of the court. Motions may be filed while a divorce case is pending, such as a motion for temporary orders. Motions can also be filed after a divorce is done, within the same case. For example, one might wish to modify child support and would file a “motion to modify child support.” Motions need to be mailed or otherwise transmitted to the other party, but do not generally need to be personally served, as the court already has, or maintains, jurisdiction over the other party by virtue of them having been served with the petition. If the other party wishes to contest a motion, he or she must file a written response, generally within 21 days of the motion being sent out.
Legal Separation: Legal separation is a process similar to divorce except that at the end of the process comes a “decree of legal separation.” With legal separation, the parties remain married, but are otherwise legally viewed as being separate as relates to finances and sometimes child custody matters. People often think they are legally separated merely by virtue of having split up, or perhaps because they are separated and a divorce has been filed. Unless a decree has entered, they are may be physically separated, but are not legally separated.
Financial Disclosures: This term refers to various financial documents which must either be drafted or exchanged as part of a divorce case (also child custody cases when support or finances are at issue). Financial disclosures are made pursuant to Colorado Rules of Civil Procedure Rule 16.2. Financial disclosures are mandatory in a divorce case and include the filing of a sworn financial statement, a certificate indicating specific documents you have provided the other party, and the documents you have provided the other party, such as pay stubs, income tax returns, and account statements. These documents are generally due within 42 days of a case being filed, or service. Financial disclosures are necessary for purposes of ascertaining both the specifics of the marital estate and income and expenses, for support purposes. They are also necessary when motions to modify child support or alimony are filed.
Discovery: The term “discovery” is different from financial disclosures and can relate to both financial and non-financial matters. Conceptually, discovery generally entails one party requesting more information from the other than has been provided in the initial financial disclosures. Discovery can come in the form of interrogatories, which are questions asked of the other party tied into children or finances. Discovery can also come in the form of requests for production of documents. Unlike the financial disclosures, which basically provide a current snapshot of financial data for each party, discovery may include much more extensive requests, such as multiple years of bank or credit card statements. If properly served with discovery, the general rule is that responses, including documents, are due within 35 days of discovery being issued. Issuing discovery is not mandatory and many cases do not necessitate information beyond that which the financial disclosures provide. Discovery can be issued either as part of an initial divorce or child custody case, or in post decree matters, such as a motion to modify.
Contested vs. Uncontested Divorce: A contested divorce does not mean that one party disagrees with a divorce happening. If one spouse wants to be divorced it will happen. Rather, contested divorce means that there are issues over which the parties are arguing. When divorces are contested the end result will be a court hearing, which means that the judge will ultimately make the final decision as to how the contested issues are resolved. In some cases, the parties might agree on some issues, such as division of marital property or spousal support, but might disagree on child custody. Unless all issues are agreed upon, thereby rendering the case “uncontested,” the case is contested.
Temporary Orders Hearing: A temporary orders hearing is a hearing authorized pursuant to C.R.S. 14-10-108, which allows the court in a divorce or child custody case to enter orders to be followed during the duration of the case. Issues might include temporary maintenance or child support, temporary parenting time, or temporary use of marital property. In some counties, a magistrate might conduct the temporary orders hearing, while a judge will deal with the final divorce issues. Final division of property is not dealt with at a temporary orders hearing. Temporary orders are intended to be nonprejudicial to either party, meaning they should have no bearing on what the ultimate divorce orders will be. At this hearing you can expect to be required to testify and present evidence.
Permanent Orders Hearing: A permanent orders hearing is the final contested hearing one might face in a divorce if all issues are not agreed to. Permanent orders are to be heard by judges only, not magistrates, unless the parties consent to a magistrate resolving permanent issues. Generally, courts will also enter the decree of dissolution of marriage at, or just after, the permanent orders hearing. The permanent orders entered are the final orders in your divorce case, though some permanent orders can be modified, such as those related to custody, visitation, or support and are, thus, not truly “permanent.” If a party disagrees with the court’s conclusions or orders at the permanent orders hearing, they have certain post-hearing or appeal options available to them. At this hearing you can expect to be required to testify and present evidence.
Separation Agreement: A separation agreement, entered into pursuant to C.R.S. 14-10-112, is the final, multi-page document setting forth the specific terms the parties have agreed to tied into all divorce related issues. People often get confused with the term “separation,” believing that the term only applies to a legal separation, not a divorce. Separation agreements as to property and debt division are generally viewed as binding contracts and are generally not modifiable as to those terms. Separation agreements are very detailed and often include both child related and financial provisions. Separation agreements become orders of the court by virtue of being incorporated into the decree for dissolution of marriage.
Mediation: Mediation is a process designed to promote settlement and is required in most Denver area divorce or custody cases. Mediation is conducted by a mediator, who is a neutral person with the sole function of trying to help people settle their issues. Contrary to somewhat popular belief, mediators do not make decisions, nor report anything to the court beyond the fact that the parties mediated. Also contrary to popular belief, mediation is not an alternative to the filing of a court case for parties to get divorced. If the parties do reach agreements at mediation, those agreements are reduced to writing and submitted to the court to become court orders. If parties settle a case prior to mediation they are not required to mediate.
These are just some of the basic terms you might hear in your divorce or other family law case. I could write dozens more, and just may do so down the road. Most of the forms mentioned in this post can be found on the State Court website. Attorneys generally use their own, more detailed forms. Though these terms are somewhat basic, you are now armed with a little more knowledge and terminology to help you as you go through your case. Even understanding these most basic of terms can help you have a grasp on what is going on and how to deal with it.