The big warning I have is this: years ago, when the program started, the idea was that the evaluators would give their opinion of how they would likely decide the case in a full-blown custody evaluation, based on the facts learned in the SENE. This honest appraisal of how a months-long custody evaluation would likely turn out is what helped parties to settle their cases.
The attorney representing either the petitioner or the respondent can schedule a temporary relief hearing. The other party must be served with motion papers, including a Motion for Temporary Relief and an Affidavit. Affidavits are written statements signed under oath. The motion papers are legal papers requesting temporary relief from the court and stating the facts on which the request is based. These facts include the income and expenses of each party, who has the children now and why they should be in the custody of the party asking for temporary custody. The motion papers must be mailed or handed to the other party before the hearing. There are certain time periods for giving notice to the other party before the hearing that must be followed when bringing and responding to motions. The petitioner's attorney often has the motion papers served at the same time as the Summons and Petition.
It is understandable that when people reach agreements together based upon what they think is right and fair, their agreements are much more sustainable going forward than court orders that tell the parties what they must do or not do, pay or give to the other party. In fact, a great advantage of mediating your divorce settlement is that you will make all the decisions together about what is best for you both and for your children as you go forward.
To file for divorce in any state you need to meet its residency requirements. These requirements vary by state. Two additional things that you should consider when thinking about relocating are what the divorce laws are where you are compared to the laws of the state that you are moving to, and what is the impact on any children involved. To the first point, you want to make sure that you aren’t filing for divorce in a state where the divorce laws are less favorable to you. To the second point, courts can and do frown on one parent’s leaving the state without the other’s consent. A lawyer can help you figure out which state would be best to file in and how to negotiate and interstate custody issues.
Mediation sessions are typically 2 – 3 hours long and scheduled approximately 2 weeks apart. Most of my clients reach a complete settlement in between 6 – 8 hours of mediation occurring over a 6 – 8 week period of time. Depending on the county in which you live and the time of year, processing of your legal documents can take the court another 1 – 8 weeks.
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Most mediators will emphasize the problem-solving aspect of negotiation at this stage. The problem to be solved is finding settlement options that address each spouse’s most important interests as fully as possible. With this focus, you’ll be able to negotiate by trading off acceptable options instead of getting locked into zero-sum bargaining, where one spouse’s gain is the other spouse’s loss.
The other party is often awarded a lien or a mortgage for a share of what the property is worth. A lien is a claim on the property. The party awarded the real estate owes the other party the amount of the lien or mortgage. The Judgment and Decree usually sets a date by which the payment must be paid. If the lien is not paid when due, the party owed the money can ask the court to order the other to pay the lien, or to change division of the property in the Judgment and Decree. In the case of a mortgage, the holder of the mortgage could foreclose.
Brian James is a Divorce Mediator with offices in Northern Illinois and Southern Wisconsin. He is the founder and owner of C.E.L. & Associates, a private mediation firm that focuses on pre and post decree divorce issues. His background consists of 10.5 years working with domestic violence and divorcing families in the Criminal Justice System. He is a member of numerous mediation organizations and local chambers of commerce. His goal is to assist his clients in their time of need and help them work out agreements that are best for them and their children. At the same time, he tries to save his divorcing couples time and money that is otherwise wasted in the court system. What would you rather do with your money during a divorce, pay it to an attorney or invest it in your child's college education?
If you were served with a "Summons and Petition" (you are the Respondent), you should talk to an attorney before you sign the "Answer and Counterpetition," and before you sign a "Stipulated Findings of Fact, Conclusions of Law, Order for Judgment and Judgment and Decree" (which is an agreement with your spouse on how to divide all assets and debts).