Divorce and Family Law

Whether assisting with formalizing an agreement already reached or zealously advocating for a client in a hotly-contested case, the attorneys at Powers & French, P.A. are here to help. We represent clients in divorce, paternity & parental rights and responsibilities cases, child support issues, post-judgment actions (to enforce or modify an existing order) and prosecuting or defending clients in actions for protection from abuse.

In addition to representing clients, drawing on their years of family law cases, the attorneys at Powers & French, P.A. can also help avoid the time, expense and frustration of going to court by serving as neutral mediators to assist in reaching an agreement, or as referees (arbitrators).

DIVORCE: FREQUENTLY ASKED QUESTIONS

Divorce can be the most stressful events in a person’s life. Powers & French. P.A. encourages you to seek legal assistance. The answers below do not constitute legal advice, which can vary greatly depending upon individual circumstances.

WHAT ARE THE USUAL, LEGAL STEPS IN A DIVORCE?

First, a complaint is served and filed. Once served, the person served needs to file an answer or enter his or her appearance. If there are minor children, the court will schedule a case management conference. If there is no agreement, the next step is mediation, often followed by a status or pretrial conference. If no agreement is reached, the court will schedule an interim or final hearing. If an agreement is reached any time before the hearing, the court will hold an uncontested hearing to hear the agreement and enter it as an order.

DO I NEED TO PROVE PATERNITY?

Children born to or conceived by a married woman are presumed to be the child of the mother’s husband. The paternity of someone other than the husband can be proved by a paternity test, which the court can order for sufficient grounds.

I’VE DECIDED I WANT A DIVORCE. WHAT DO I NEED TO DO FIRST?

We recommend meeting with an attorney first to come up with a plan of action. At Powers & French, P.A., we like to meet with clients early in the process to find out what is important to them and to discuss their expectations, financial situation, and preparatory actions.

If there isn’t much martial property, no children and you and your spouse agree, a divorce can be simple and filed quickly. Where there is property at issue, children or conflict, divorce can get complicated and requires more planning. In general, a divorce begins with filing a complaint with the court and serving the complaint on your spouse. If children are involved, a Child Support Affidavit must be filed with the complaint. We also recommend that parents attend a Kids First program as soon as possible once the decision to divorce is made.

I’VE BEEN SERVED WITH A SUMMONS AND COMPLAINT. WHAT SHOULD I DO?

We recommend that you meet with an attorney. Complaints must be answered within 20 days. In most cases, we will prepare an answer for a client that denies or confirms their spouse’s allegations and includes a counterclaim for divorce on behalf of our client. If children are involved, a Child Support Affidavit should be filed with the answer. We also recommend that parents attend a Kids First Program.

WHAT HAPPENS AFTER THE COMPLAINT IS FILED?

Upon receiving the complaint and served summons, the court first will schedule a case management conference if the case involves minor children. The conference, before a family law judge or magistrate, is an opportunity for the court to assess the issues involved in your case and set a schedule moving forward. The judge also will encourage both parties to seek agreement where possible. If you have agreed on certain items, the judge can issue an order acknowledging that agreement. If there is substantial conflict in regards to children, the court may order the appointment of a guardian ad litem to represent the childrens’ interests and do an investigation.

If there are no minor children involved, the court will usually either send a scheduling notice establishing various deadlines to get the case ready for trial or will schedule a pretrial or status conference to discuss scheduling.

WHAT IS MEDIATION?

Mediation is a legal requirement in most divorce cases unless there is complete agreement. Although there is no requirement to reach an agreement, the parties each must make a good faith effort. Mediation takes place at the courthouse and is attended by the parties, their attorneys and a mediator, who serves as a neutral party. The mediator’s role is to encourage and assist the parties to discuss issues and reach agreement where possible. Mediation is not binding, but can be very helpful. Mediation costs $180, which usually is split by the parties. Parties also are free to use private mediation services.

WHAT IS AN INTERIM HEARING?

An interim hearing is a formal court hearing held to settle some of the disputed issues in advance of a final hearing. At the hearing, each party is able to present their version of the issues, which can include presenting witnesses and evidence. A family law judge or magistrate then issues an order deciding those issues, which is binding on both parties and usually incorporated into a final order

WHAT IS AN UNCONTESTED HEARING?

An uncontested hearing is a short hearing held to finalize a case where the parties have agreed on all of the issues. The family law judge or magistrate reviews the agreement, asks questions to ensure that the agreement is conclusive, and issues a final order incorporating the agreement.

WHAT IS MARITAL PROPERTY?

Property acquired during a marriage is marital property except for gifts, inheritances and property acquired in exchange for other, non-marital property. If property is jointly owned, either as joint tenants for real estate or in both spouses’ names for accounts, it is marital property. Marital property may be divided equally between the parties, although shorter marriages, unequal contributions and changes in ownership all present opportunities to assert a claim for a greater portion to one spouse.

WHAT IS A QUALIFIED DOMESTIC RELATIONS ORDER?

A Qualified Domestic Relations Order [QDRO] is a court-approved order dividing a pension or other retirement account between spouses. QDROs also must be approved by the plan administrator and signed by the court.

HOW IS ALIMONY DETERMINED?

Alimony, also called Spousal Support, is based on each spouse’s assets and income. This information is gathered during a legal action by means of financial affidavits provided by each spouse.

HOW IS CHILD SUPPORT DETERMINED?

Child support for minor children is determined based on the parties’ incomes, the cost of daycare and health insurance. Child support is usually calculated by applying the Maine Child Support Guidelines. If the parties agree to another amount, the court must approve any deviation from the application of the Child Support Guidelines.

WHAT DO I DO ABOUT PROBLEMS THAT OCCUR AFTER A FINAL DIVORCE JUDGMENT?

You can appeal a final judgment within a certain time period upon certain legal grounds; however, an appeal is not a second chance to make the same arguments made at the hearing. After that, modifications of child support, spousal support and provisions for the care and custody of minor children must be based on new circumstances that constitute a substantial change affecting the subject of the final order. If circumstances have changed (such as a parent moving, a major change in the child’s schedule, etc.), you may ask the court to hold a hearing on the issue of whether the existing order should be changed to address this new circumstance. If your co-parent is not abiding by the divorce judgment, you can bring an action in court to enforce the judgment.

WHAT IS A CHILD SUPPORT AFFIDAVIT?

A Child Support Affidavit is a court form which must be submitted by both parties in a divorce or other parental rights and responsibilities action. On the affidavit, you must provide contact information and details about your employment, income, child-related expenses, assets and debts. The affidavit’s financial information is used to compute child support.

WHAT IS A FINANCIAL STATEMENT?

A financial statement is a court form that its used to disclose information regarding the parties’ assets and debts and, if spousal support or attorneys fees are requested, information regarding income and living expenses. If there is agreement on financial issues, the parties may file a Certificate in Lieu of Financial Statement.

WHAT IS KIDS FIRST?

The Kids First Center is a non-profit organization located in Portland that offers classes, workshops and other forms of support to divorcing/separating families. The Kids First Program is a one-day, four-hour workshop that offers valuable information about how parents can put the needs of their children first while they are dealing with the difficulties of divorce/separation and so reduce the negative effects on their children, and themselves.

If parents are having any conflict in regards to the child(ren), the court often will require that both parents attend a Kids First Program and present a certificate of completion to the court. The program is offered Saturday mornings in Portland twice a month, and bimonthly in Biddeford, Topsham, and Farmington.

WHAT IS A GUARDIAN AD LITEM?

A Guardian ad Litem [GAL] is a trained professional charged determining the best interests of a child in disputed court actions. A GAL may be appointed by the court or agreed upon by the parties; the cost of the GAL similarly is allocated to the parties by the court depending on their means to pay or by agreement. A GAL typically will meet with the child(ren) at issue, the parents, and others such as caregivers, educators and/or relatives. After the investigation, a GAL will files a report with the court with a recommendation about how any parental rights and responsibilities at issue should be allocated. GALs can be very helpful in cases where parental rights or the child(ren)’s residency is at issue.

WHAT ARE MY OPTIONS FOR WHERE MY CHILDREN WILL LIVE?

You either will seek primary residency (most people call this “custody”), shared residency (which means that they split time between you and your spouse), or your spouse will have primary residency. Shared residency can be splitting the week on a strict schedule, or by agreement, depending on the parents’ relationship and children’s needs. Primary residency by one parent usually involves a visitation schedule for time the child(ren) spend with the other parent. If the parents have a high conflict relationship or trouble communicating, we recommend specific residency and visitation schedules. Court orders even can include details about pick up and drop off to ensure that these transitions go smoothly.

WHAT DOES SHARED PARENTAL RIGHTS AND RESPONSIBILITIES MEAN?

Shared Parental Rights and Responsibilities means that most or all aspects of the child(ren)’s welfare remain the joint responsibility and right of both parents, so that both parents retain equal parental rights and responsibilities. As a result, the parents must confer and make joint decisions regarding the child(ren)’s welfare such as education, religious upbringing, medical, dental, and mental health care, travel arrangements, and child care arrangements. Shared parental rights and responsibilities require parents keep each other informed of any major changes affecting the child(ren) and to consult with each other in advance to the extent practicable on decisions related to the child(ren)’s welfare.

Other options are sole parental rights and responsibilities (only one parent has the above rights and responsibilities) or allocated parental rights and responsibilities (each parent has certain, specified rights and responsibilities).

WHAT CAN I DO IF I WANT TO CHANGE A FINAL ORDER’S RESIDENCY OR CONTACT?

If you want to change the terms of a final order and your co-parent does not agree, you can request a modification. Your request must allege a substantial change in circumstance affecting the child(ren). Because of the requirement that there be a substantial change in circumstances before the court will consider changing an existing order, it is best to have effective legal representation and get a well-considered and detailed initial order.