Since 1981, Shankman & Associates has been representing men and women in Maine who are facing divorce, separation and annulment. Our clients want to learn about their parental rights and responsibilities, spousal support, and their rights to pensions and retirement plans. There are many questions about divorce that they want us to answer. We know that divorce can be a challenge. It can be frightening if you do not know what to expect. Our job as your lawyer is to answer your questions, offer professional guidance and help you reach your goals.
FAQ: Guide To Divorce Process And Procedures
What is the difference between a divorce, an annulment and a judicial separation?
Divorce is the legal termination of a marriage by a court. In Maine, there is no such thing as a common-law divorce. Only a judge can end a marriage. An order is entered ending the marriage and determining for each party their respective rights and responsibilities arising from the past relationship. While an annulment also ends a marriage, it goes one step further. An annulment treats the marriage as if it never happened. People may seek an annulment rather than divorce for religious or other personal reasons. Usually the marriage was for an extremely short duration. The party seeking a legal annulment must show that their spouse misrepresented or concealed an important fact in order to get married, or that the spouse refused or was unable to consummate the marriage. Separation does not terminate the marriage, no matter how long you and your spouse live apart. Some couples have an informal separation as a personal choice, or as a temporary measure. These arrangements have no legally binding impact. A judicial separation involves a court ruling as to the parties’ rights and responsibilities but it does not legally end the marriage. The court can address parental rights and responsibilities, support and other financial matters, division of assets and legal fees.
What are the grounds for divorce?
Maine law permits divorces to be granted on the ground of “irreconcilable marital differences between the spouses.” This is also referred to as a “no-fault” divorce. In order to obtain a no-fault divorce, it must be shown that the marital differences are sufficiently serious as to make it intolerable for you and your spouse to continue to cohabit together, that the relationship has broken down and there is no reasonable likelihood of reconciliation between the parties.
Although the traditional fault-related grounds for divorce such as “adultery”, “impotence”, “extreme cruelty”, “utter desertion”, “gross and confirmed habits of intoxication”, and “cruel and abusive treatment” still exist, virtually all divorces now proceed solely on the grounds of irreconcilable marital differences. The purpose of the no-fault divorce is to reduce bitterness and hostility between the spouses arising from the litigation process. There is rarely an “advantage” gained by proving fault. Except in the case of economic misconduct, neither side is penalized based on inappropriate behavior. Furthermore, the process involved in proving fault not only prolonged the process and added considerably to legal fees, it inevitably undermined the ability of both parties to co-parent.
What issues will be addressed in a divorce?
In addition to determining whether the husband and wife will be granted a divorce, Maine divorce courts have broad powers to resolve all other issues related to the marriage and the relationship of the parties. Other issues often include (1) the determination of future parental rights and responsibilities (including child support and visitation) if there are children of the marriage under the age of 18; (2) the award of temporary or permanent spousal support (alimony); (3) the division of marital property belonging to the parties and the setting aside of nonmarital property; (4) determining responsibility for the payment of marital debts; (5) permitting either party to resume a former name or any other name either husband or wife would like; and (6) the determination of the responsibility for paying the attorney’s fees and court costs incurred as a result of the divorce. The property and financial issues which may arise during a divorce are virtually unlimited. Unlike virtually every other type of case, legal fees in a family law matter are based upon the relative ability of each party to absorb the cost of litigation. It does not mean that the spouse with a greater income automatically pays the legal fees of his or her spouse, but it is the first step in the analysis. This of course does not relate to the initial retainer which must be paid by any client to his or her attorney at the start of the divorce.
How do the courts address the issue of child custody?
There is no such thing as “custody” in the state of Maine. In an effort to try to minimize confrontation between parents and to take children out of the realm of “possessions” to be fought over, the state legislature has instead adopted the concept of “parental rights and responsibilities.” These may either be shared, allocated between the parties, or awarded to one side or the other solely.
“Shared parental rights and responsibilities” means that most or all aspects of a child’s welfare remain the joint responsibility and right of both parents. Both parents retain equal parental rights and responsibilities and both parents confer and make joint decisions regarding the child’s welfare. Matters pertaining to the child’s welfare include, but are not limited to, education, religious upbringing, medical, dental and mental health care, travel arrangements, child care arrangements and residence. Parents who share parental rights and responsibilities are expected to keep one another informed of any major changes affecting the child’s welfare, and are required to consult in advance to the extent practicable on decisions related to the child’s welfare.
While the primary residence of children of divorce can be shared, in some cases this is not considered to be practical due to distances between homes, verbal or physical abuse, mental health issues or otherwise. Thus, one parent or the other is often granted primary residential responsibility, and the other parent is given rights of contact and visitation. In many cases, the schedule of contacts is outlined in great detail. In others, it is more broadly drawn, simply referring to “reasonable and proper times and places as may be agreed upon by the parties and as is in the best interests of the minor child.”
The bottom line is that parental rights and responsibilities are going to be determined based on the best interests of the minor child. Maine law requires that the court consider numerous factors in determining the best interests. These include:
- The age of the child;
- The relationship of the child with the child’s parents and any other persons who may significantly affect the child’s welfare;
- The preference of the child, if old enough to express a meaningful preference;
- The duration and adequacy of the child’s current living arrangements and the desirability of maintaining continuity;
- The stability of any proposed living arrangements for the child;
- The motivation of the parties involved and their capacity to give the child love, affection and guidance;
- The child’s adjustment to his or her present home, school and community;
- The capacity of each parent to allow and encourage frequent and continuing contact between the child and the other parent, including physical access;
- The capacity of each parent to cooperate or to learn to cooperate in child care;
- Methods for assisting parental cooperation and resolving disputes and each parent’s willingness to use those methods;
- The effect on the child if one parent has sole authority over the child’s upbringing;
- The existence of domestic abuse between the parents, in the past or currently, and how that abuse affects the child’s physical safety and emotional well-being;
- The existence of any history of child abuse by a parent;
- All other factors having a reasonable bearing on the physical and psychological well-being of the child;
- A parent’s prior willful misuse of the protection from abuse process in order to gain tactical advantage in a proceeding involving the determination of parental rights and responsibilities of a minor child.
- If the child is under one year of age, whether the child is being breast-fed;
- The existence of a parent’s conviction for a sex offense or a sexually violent offense defined by statute;
- If there is a person residing with a parent, whether that person has a criminal background that warrants concern for the health or safety of the child based on statutory definitions; and,
- Whether allocation of some or all parental rights and responsibilities would best support the child’s safety and well-being.
How does the divorce process begin and how long will it take?
Like most lawsuits, a divorce is begun with the service of a complaint and summons. In all situations involving minor children, a child support affidavit must be served as well. In most instances, the complaint and summons will be personally served on the other party at home or at work by a constable or deputy sheriff. However, if your spouse is willing to cooperate regarding service, it can be handed to them by you or mailed, so long as an acknowledgment of receipt of summons and complaint form is signed, dated and filed with the court. The complaint is a document which sets forth the alleged grounds for the divorce and basic facts concerning the marriage and any children of the marriage. The spouse who receives the complaint is required by law to file a written answer or appearance with the court within 20 days. The answer may be accompanied by a “counterclaim,” which is a complaint for divorce by the spouse filing the answer. The labels “plaintiff” and “defendant” indicate who initiated the divorce but only minimally influences the courtroom procedure. They have no effect on either spouse’s parental or property rights.
The absolute minimum period of time before a final divorce hearing can be held in Maine is 60 days from the day the divorce complaint and summons are served. In reality, even uncontested divorce cases take at least three months and when the parties are unable to agree, the process can take one year or more.
What is a case management conference?
A unique feature of Maine divorce law is that divorcing parties who have children under the age of 18 are required to participate in case management conferences. A case management conference involves the meeting of the parties and their counsel with a family law magistrate, who has the authority to act as a judge. The family law magistrate will discuss the issues in the case and make interim arrangements for the children, including primary residence, parent/child contact, health insurance and child support; interim responsibility for payment of periodic debts; and interim spousal support (if applicable). Issues in dispute will be discussed, and deadlines will be established for exchange of information (known as discovery) and mediation.
Within two to four weeks of filing divorce papers with the court, the parties will usually receive notice of the date and time for a preliminary case management conference. If the parties agree on all child-related issues, we can file a certificate in leu of case management conference with the court, along with a proposed interim order. If there is no agreement, the parties and their lawyers are required to attend a half-hour conference with a family law magistrate. Family law magistrates are not judges. However, they are individuals who have been specially assigned to act in a quasi-judicial role intended to expedite the handling of divorces.
At the case management conference, the family law magistrate will attempt to identify the threshold issues that need to be decided and urge each side to reach a temporary agreement. If no complete, final agreement is reached at the conference, the parties will usually be required to go to mediation (which can be waived under certain limited circumstances). If the first mediation is unsuccessful, the parties are entitled to a second mediation. Depending on the status of the issues between the parties, the court can schedule an interim hearing and set the matter for a pretrial conference.
Is mediation required and is it really helpful?
If the parties to the divorce are unable to reach agreement on every issue in dispute, they will be required to attend mediation. If there are no minor children involved, mediation may still be held if both spouses agree to attend or if it is otherwise ordered by the judge. The mediation fee is $80 for each party, although it sometimes makes sense to pay the full amount of $160 in order to move matters ahead more expeditiously. Mediation is informal in the sense that the spouses, their attorneys and a mediator meet in private, without the customary court rules regarding evidence or courtroom procedure. The mediators are hired by the court and have received training in the art of mediating. Although some have formal legal training, they cannot provide legal advice. As an impartial third party, the mediator tries to help the parties reach reasonable agreements regarding the issues of the divorce. It is not a purpose or goal of mediation to seek to reconcile the parties’ marital differences. The mediation process has been found to be a useful tool for obtaining a fair settlement agreement in many contested divorces. However, the “job” of the mediator is to facilitate an agreement. It is not his or her job to look out for your interests or to protect your legal rights. That is our responsibility as your lawyer.
Can I get a temporary Order before my divorce is finalized?
If necessary, Maine law permits you or your spouse to seek an interim court order, which will govern your marital affairs until the conclusion of your divorce. Interim court orders usually address which spouse will have the use of the marital home, responsibility for marital debts, temporary support and spousal support, parental rights and responsibilities for children under the age of 18, and responsibility for preliminary attorney’s fees. A mediation session is usually required before the court conducts a hearing on a request for an interim order pending divorce, although in extreme cases, a “waiver of mediation” can be requested of the court.
What is the final hearing?
If an agreement is reached through informal discussions, attorney negotiations, mediation or a combination of these efforts, a proposed Divorce Judgment will be prepared and presented to the judge or family law magistrate for approval at the final hearing. If the Divorce Judgment is approved, it becomes final. If an agreement is not reached, the final hearing will be a trial at which witnesses will testify and the judge will decide all issues in dispute. Note, however, that if the only issue in controversy is child support, a family law magistrate can conduct the final hearing. The final hearing can be anywhere from one hour to a few days, depending on the number and complexity of unresolved issues.
What should I expect from my divorce lawyer?
Your Shankman & Associates attorney will make every effort to keep you informed of the status of your case, and we encourage you to call us or schedule an appointment to meet with your attorney whenever you have questions or concerns. Remember that telephone calls are usually easier (and cheaper) than office appointments. If your attorney is not able to take your phone call immediately, he or she will return your call as soon as possible. Please keep in mind, however, that you will be billed for all telephone and office conferences.
You may find it easier sometimes (and always less expensive) to call your lawyer’s secretary or paralegal and thus avoid a charge for receiving routine information, clarifications or updates. You will receive copies of all of the court documents which we prepare or which we receive related to your case. We will expect you to advise us whenever you have a change of address or telephone number for your home, cellphone or place of employment, or if you plan to be out of the area for any length of time.
It is our objective to handle your case as diligently as possible, keep you fully advised of the status of the case and obtain a fair and just result for you. When you are going through a divorce, you need to be kept fully informed, treated with respect and have an opportunity to consult with your attorney regarding each issue. No divorce is easy, but at Shankman & Associates, we can make it easier.