The Divorce Process (Part 1)

Jun 8, 2021

Join Tracy and Susan for the start of our series on the divorce process — initial filing and temporary hearings.


Tracy Hightower-Henne: Today, we’re going to start a first in a three part series about the divorce process. So in the upcoming episodes, we’ll talk about stages two and three, which are the middle and the end stages of a divorce. And today we’re going to talk about part one or stage one of a divorce process, which comes with all of the pieces of filing for divorce and what we call temporary hearings. So what’s what’s new in Susan’s life?

Susan Reff: Well, I think we both kind of had like some really stressful pet issues happening recently. I mean, yours more than mine.

Tracy Hightower-Henne: But yeah, we had a sad week. We lost our dog, Maya, this week and she was our she would have been 12 this July as a Great Dane. So we talked, we’ve talked a little bit about her on the podcast. So that was that was really tough, but we found some silver linings in it. We were able to schedule an in-home euthanasia, which was really great for both my husband and I. And we think for Maia, we used a company called Angel Paws, which I had no idea existed, and she’s been around forever. So we also actually just picked up her ashes yesterday and we got some surprises, like a clay nose print and a clay paw print, which I would have never imagined doing that. So so yeah, we feel really lucky to have had a good experience with such a really sad experience. But yeah, what’s up with yours?

Susan Reff: Well, so late in the well, we got home from work one night and our cat, our senior cat, that I think we’ve mentioned a few times too. He couldn’t walk, and so we took him to the emergency vet and they really couldn’t find anything wrong with him. So then we took him to our regular vet who still really couldn’t find much wrong with him and

Tracy Hightower-Henne: Spent eight thousand dollars at the emergency

Susan Reff: Vet. Well, yeah, I think they just take the price of things and double it

Tracy Hightower-Henne: At 18 zeroes.

Susan Reff: And so I mean, he’s improving somewhat. But I mean, clearly something has happened with him. He can walk now, but he can’t really do the stairs. And so, you know, we had to have that conversation too of like, at what point do you continue, you know, just like with this poor quality of life for your pet. And so those are hard decisions and hard conversations.

Tracy Hightower-Henne: And how old is this cat?

Susan Reff: He is 18.

Tracy Hightower-Henne: So do cat years have the same thing as dog years?

Susan Reff: You know, I don’t know. Probably, probably similar.

Tracy Hightower-Henne: Do cats like two hundred and fifty two years old because I think cat ears probably are higher, right? Yeah, I don’t. I?

Susan Reff: I definitely. Yes, he’s definitely a senior citizen. I mean, the senior cat food starts at seven years old.

Tracy Hightower-Henne: My cats are more than seven. I went to research this. Yeah, I’m on it.

Susan Reff: So, yeah, so yeah, I’m yeah.

Tracy Hightower-Henne: Also, cats grieve, too. So our cats are grieving the death of our dog. Yeah, but now that I know their senior cats and I didn’t really know that I got to feed him some different

Susan Reff: Food, they need some cat therapy. Yes, cat therapy. So speaking of therapists, therapists can help you in the divorce process, right?

Tracy Hightower-Henne: Yes. So, all right, this first stage of the process, and when we talked about this topic, which is the process of divorce, we wanted to talk about the court process, right? What happens in court? What types of things are filed? And we ultimately broke it into these three sections. So this first part is kind of the beginning. So we’ll call it beginning, middle and end, really creative. So the beginning part is the stuff that happens at the beginning, and it gets us through what we call a temporary hearing. So when we talk about the beginning stage, we think about the initial filing of the document that gets filed in court.

Susan Reff: And that’s where people, you know, when we talk to clients, they they think that, you know, that they’re there. All their information is going to be put in that initial filing. And that’s just not the. Case, the filings at the beginning are really a lot of boilerplate language, but they’re very broad like we don’t have to say. You know, I want the the Volvo and the toaster and the Volvo. I don’t know why I said Volvo.

Tracy Hightower-Henne: Do a lot of your clients have Volvos

Susan Reff: Actually have a case right now where there is a Volvo,

Tracy Hightower-Henne: Volvo Volvos?

Susan Reff: Yes, OK. They’re very they’re very efficient cars, apparently. But anyway, so like that initial filing, right is just very general. It’s too. And that’s what opens up the case. It’s called a complaint for dissolution of marriage.

Tracy Hightower-Henne: Right. And so it’s actually about a two and a half page document. It includes a lot of boilerplate information that’s required by Nebraska statute to put the world on notice that you’re filing for divorce. So a lot of times, yeah, our clients are saying, Well, we need to put in there that my spouse was drunk last weekend, and the answer is no, you don’t. We’ll save that for another time. So that gets filed. And then, you know, assuming our clients, the filing party, we talk a lot about the service, a process that is a lot of decisions to make. That’s like the first big decision you have to make in a divorce, right?

Susan Reff: Yeah. After you’ve decided to file is how do you want the other person to get notice? Do you want them to be served by a sheriff or do you want to do it a little more informally where maybe it’s emailed or mailed to them, either from the lawyer or directly from their spouse? And I feel like this is an area where if people are getting along, generally, we’re we’re not going to serve them by a sheriff because that’s kind of traumatic. It causes some stress. People feel you’re bringing in third parties.

Tracy Hightower-Henne: So unlike the movies where everyone gets served, have you seen the the show on HBO called Divorce with Sarah does not. And at one point, her husband gets served at a soccer game while he’s coaching the kids soccer. Maybe it’s basketball, I don’t know, but and I was like, Oh, that is not what happens.

Susan Reff: Not very often, right? You know, there’s been times, though, where we’ve had to be creative to get someone served because either they’re avoiding service or we really don’t know where to find them other than some public places, because we don’t know where they’re living. Maybe we don’t know where their actual office is to serve them at work or something like that. So it is serving them at like a a thing that both parents would be attending for their kids.

Tracy Hightower-Henne: Yeah. And sometimes there’s a timing issue that we need to get someone served right away to. Maybe there’s an emergency issue, a custody issue that needs to be dealt with immediately, and we can’t wait for them to decide whether they’re going to accept service, right? I remember. Do you remember the one time we set up a fake meeting? Yes, at a Starbucks? Yes. And we got him served and it was a so it was a guy that owned his own website creation business, and we couldn’t get him served and couldn’t get him served because he was totally evading service. And so we finally had a friend call him and want to set up a meeting to create her website. And so we showed up at Starbucks and handed him the document. And that’s all that services, right? Is just literally handing the document. And then usually the constable or the sheriff is going to file a return of service, saying, I handed this document to that person. So it’s also not that it’s not like the movies right at the soccer game.

Susan Reff: It’s it’s and the court requires that the receiving party gets noticed properly because that wouldn’t be fair right to open up a lawsuit against someone and they never know about it. Right. So that’s like the legal term due process. You have the right to know that there’s a lawsuit against you,

Tracy Hightower-Henne: Dewey, not d. Oh, oh, do do just do Dewey do process and then process of law?

Susan Reff: Yeah. Then that person in the divorce will file a responsive pleading and they can. They have to respond to the initial complaint with an answer that either agrees or denies with all the allegations in the complaint.

Tracy Hightower-Henne: But what if they don’t,

Susan Reff: If they don’t file an answer? Well, so the court rules say they have 30 days to file an answer after they’ve been served, and if they don’t, then they’re in default of that rule, meaning they’re not in compliance and then the moving party. So the person who filed for divorce can ask the judge to enter an order that gives that person everything they want. I mean, basically, you go in and say because they didn’t respond. They don’t have. To say any longer in the case, and I get what I want,

Tracy Hightower-Henne: Yeah, and I think something for everyone to remember that’s really important is that a divorce is like any other lawsuit. So, you know, if you get hurt at Wal-Mart and you sue Wal-Mart, it’s literally the same thing. You’re suing your spouse for an action in court. We sometimes just maybe don’t call it that because it feels funny, right? But it’s the same thing. So everything you’re getting on this three part series is Civil Procedure 101. You can like take two semesters of law school and market off your list right

Susan Reff: Here, and maybe some family law classes. One credit a family law. Ok? Right? This is this is more than I probably learned in my family law class.

Tracy Hightower-Henne: So, yeah, so the other option to for your spouse to receive notice other than being served is by signing what’s called a voluntary appearance, and that’s literally just the name of a one page document. So I think the majority of the cases that we deal with, we have our spouse either hand deliver or it goes to the mail, and some of it depends a little bit of whether you’re still living together. This document with a cover letter from the attorney, our office sends this and says, Hey, we now represent your spouse. They want to divorce you. Can you sign this? And that usually is the point where that person will go hire an attorney and and that attorney will tell them, Yes, it’s OK to sign this document.

Susan Reff: Yeah, I I had a case where the our client was the filing party, and she was convinced, you know, wouldn’t it would go smoothly because they had been talking about divorce. They maybe even had already separated. And so she said, just print out the paperwork and I’ll I’ll leave it for him at home and I’ll let him know that it’s going to be there for him to pick up. And he picked it up and then said to her, Well, I had a consult with a lawyer and they told me not to sign the voluntary appearance. And so she and I were. And she knew exactly what the voluntary appearance meant and the ramifications. If he didn’t sign it, we were thinking, why? Why wouldn’t you sign that? Why would an attorney tell you to wait to be served

Tracy Hightower-Henne: So we serve them at the soccer game? Right? I mean, you kind of had the

Susan Reff: Race at their birthday party? Yeah. I mean, yeah, it’s don’t make things harder than they need to be. That doesn’t happen very often, but. And we don’t do that. We don’t tell people not to sign a voluntary appearance, right? We like to review it before our client, sign it to make sure it really says is what it says it is. But you know, it’s pretty. It’s pretty boilerplate.

Tracy Hightower-Henne: It’s pretty obvious. Like literally in the document, it says, I’m only signing that I received this document and I’m not signing any rights away of anything else, right?

Susan Reff: Yeah. And then they, you know, that person, they can then countersue in in the open case, they can countersue their spouse and ask for whatever it is they want in the divorce. And that’s called a counterclaim, right? And they would have

Tracy Hightower-Henne: So different from a cross claim. That’s you got to get your credit for civil procedure. Yeah.

Susan Reff: So the claim is where you would have more than two people in a lawsuit. Probably. We think maybe, maybe not. I don’t know. We’ll have to go back to Moscow.

Tracy Hightower-Henne: It’s been 10 and 20 years since we took the bar exam. Yeah.

Susan Reff: So after the the initial filings get made and the case is open, we then we know who the judge is. And we, you know, have a discussion then with our client about whether or not there should be a temporary hearing.

Tracy Hightower-Henne: Yeah. So when we talk to clients about what happens after we file, it’s true that you find out so much information. And like you said, you find out who the judge is, which gives you a lot of information of kind of what direction in case is going to go by way of scheduling, or maybe how far out a trial could get set, which also can lead to helpful discussions during settlement. But the other thing you find out to typically shortly after you file is is there going to be another lawyer and who is that person? So those two people in the case yourself included so three total people, the two lawyers and the judge can make a really big impact on kind of the culture of what what’s going to happen in the case.

Susan Reff: Yeah, sometimes we have that conversation with clients when they start asking us questions to about the future of their case. And we have to say it depends and a lot of what it depends on is who the other lawyer is.

Tracy Hightower-Henne: So I just had a few friends over and hey, guess what? We’re friends with other lawyers, right? I think our clients don’t really understand that. And. So this other this other lawyer, friend and I, we both do divorces in Omaha, and so we’ve been on the other side of cases before together,

Susan Reff: And you can be friends with someone who you had a case against. You can have

Tracy Hightower-Henne: Friends as lawyers. Yeah. So we we were we

Susan Reff: Ever talk about that another time. Every time we get

Tracy Hightower-Henne: Together, we say, I wonder if our clients knew that we were friends and hanging out right now, if like that would be OK with them. And it’s just, you know, it’s always really interesting. So we often will tell clients, OK, if so-and-so is on the other side of the case, we have a good working relationship with them. And this lawyer friend said that she tells people, I’m actually friends with Tracy and you have to be OK with that. And I thought, Oh, that’s really good. But the moment that something goes wrong in your case, you know, it gets blamed on your

Susan Reff: Friends were, you’re too friendly with that person? Yeah.

Tracy Hightower-Henne: So actually being friends or friendly or amicable or kind or professional, all of those things with opposing counsel are actually a good thing.

Susan Reff: And when you’re friends with the judge, it even helps more, right? You have this

Tracy Hightower-Henne: Like smile on your face. That’s like,

Susan Reff: Well, a lot. A lot of people that I’ve practiced law with are now judges, right?

Tracy Hightower-Henne: Yes, it’s true. And judges are just people. Yeah, they have friends, too.

Susan Reff: And you know what? There are a lot of judges who have very little family law experience, and they rely on us so we can help educate a judge in this process. And if they know us and know us outside of work to a certain extent, they trust us and they’re going to be like, Yeah, Tracy and Susan are saying something is the case. They know that we’re not. We’re not being conniving or sneaky or whatever. We’re really putting forward the facts of the case.

Tracy Hightower-Henne: If you’re part of the Lady Lawyer League, we trust you in court. So once the case gets filed and we now we know who our judges at least, and sometimes there may not be an attorney on the other side, either throughout the whole case for weird reasons or just there may not be an attorney right away, but then, yeah, the next thing that could happen is a temporary hearing. Yes. So what happens at the temporary hearing?

Susan Reff: Well, a temporary hearing is a hearing to determine like what I would like I say to clients is like intermediate issues, issues that need to be dealt with on a temporary basis until the case can be finalized. And so our judges will decide temporary custody, parenting time. So like the schedule for the kids, whether or not there should be temporary child support and how expenses for kids will be shared or split, including daycare. That’s a big expense that parents face and also issues of like the home, if they’re if the parties are separating, is one going to stay in the house and if they’re staying in the house, are they paying one hundred percent of the bills or are they going to be split? Is there going to be alimony on a temporary basis and maybe even a temporary attorneys fees? I think those are most of the issues.

Tracy Hightower-Henne: I think the big question and the big surprise that a lot of clients have at this stage. So like shortly after your filing, the complaint may be up until a temporary hearing, which sometimes can be somewhere two to six weeks after a filing. The biggest confusion that clients have is a judge can’t kick my spouse out of the house. Oh my gosh, we have to keep living together while we’re going through a divorce. And the answer is, yeah, maybe. And yes, probably. And so there’s a lot of confusion around that idea that judges don’t really have the big ability to make someone have to move out of a house. And so oftentimes we’ll talk to our clients about if you want to no longer live together, sometimes you have to make the decision yourself and be in control of that own your independence.

Susan Reff: And I think, you know, this is where people’s emotion overrides, like what they know. And the reason that judges are wary to kick people out of a house is because it’s jointly owned. The house is owned by both parties. And ultimately, the judge will decide either the parties will agree on something or the judge will decide what happens to that asset. And if the judge is deciding it, you know, like you said, two to six weeks into the case with very little information, they they’re wary of making someone have to take on the expense and the stress of finding their own place to live.

Tracy Hightower-Henne: Yeah. And some of the exceptions are when there’s provable domestic violence, which often can be very difficult to prove. But. There is some exceptions to what’s called exclusive use of the home, where a judge can order one person to move out. So but often judges say I don’t have the ability to make this other person move out, and part of the temporary hearing as well is talking about finances. And you often are going from one household with shared income to potentially two households, with each having their own income or if one person is the only person working. Now you’re having two households with one income. And so oftentimes, just budget wise, it may not be possible to have more than one household with the money there is.

Susan Reff: Yeah. So I the other thing I think it’s important to mention for temporary hearings is a temporary hearing is not like a trial. It’s not like on TV where there’s a witness in the witness stand and the judge swears them in and they tell their story. Temporary hearing is done with affidavits only. And so, you know, I think we find a lot that our clients and the people that they get to write affidavits, people will put something on paper that they might not be willing to walk into an open courtroom and say so they start saying some pretty negative things, and this is where it gets really hard because somebody might think they’re going into a divorce respectfully. You know, we’re going to be able to work this out and then the other person brings up every.

Tracy Hightower-Henne: Are you describing mudslinging?

Susan Reff: Yes.

Tracy Hightower-Henne: Are you describing throwing someone under the bus?

Susan Reff: Every like, every negative thing, like, oh, every time that person was late to pick the kids up from school,

Tracy Hightower-Henne: Which was like two times for two minutes

Susan Reff: Late? Yeah. Or they had to work late and they missed a soccer game. All of a sudden, they never participate in the they

Tracy Hightower-Henne: Miss the soccer game because they didn’t want to get

Susan Reff: Served. But, you know, it’s like everything that you know you normally, as humans forgive each other for doing is all of a sudden, you know, a red checkmark and that person has. And the person that wasn’t keeping score starts to feel really bad that they weren’t keeping score.

Tracy Hightower-Henne: And I think the good thing is that most of our judges can see between those lines really and kind of weed out the maybe over dramatization of some of those things. But this temporary phase in this stage one of a divorce process really is the highest emotional piece of a divorce. Typically, yes. And so when we talk about this process with our clients, we often will suggest that they either continue working with a therapist that they have been working with or that they establish a relationship with a therapist. I think we’ve talked about before that we can be we can be called counselors of the law, but we are not good at it. We can listen, but we are not.

Susan Reff: We are good counselors of the law, right? We’re not good counselors.

Tracy Hightower-Henne: Yeah. So I think that the biggest takeaway of, you know, stage one of a divorce is take things one at a time, right? When you’re looking at stage one and this temporary hearing phase, we’re not talking yet about what’s happening with retirement accounts like that will come. Nothing’s going to happen to them. It’s going to be OK. We need to focus right now on living arrangements, bank accounts, parenting time because all these super dramatic changes are going to start happening and then also having that professional help of how you’re going to cope with those things personally.

Susan Reff: So many people come in to the very beginning part of the divorce, and they want to know what the end is going to be and not how to get there. They just they just think, OK, what am I going to get in the end?

Tracy Hightower-Henne: And you know, there’s some studies that say that people think about divorce for about two years before they actually talk to a lawyer. So they’ve been thinking about the end for two years. Sure. But we just get presented the facts as their advocates. So we do have to remind our clients often that we need to take one thing at a time. Let’s finish this temporary hearing. Then we’ll talk about stage two and stage three

Susan Reff: And reminding reminding clients, too, that everything is is part of the process and every, you know, there are certain steps that just can’t be skipped. You know, you don’t have to have a temporary hearing, but you have to have service and you don’t have to file a counterclaim. But there needs to be an answer. And certain things like that, like, that’s our job to make sure those things happen in the case and then working those things to the end so that we can get a good outcome for our client. But sometimes that’s like keeping them on the path instead of. Just rushing to that finish line.

Tracy Hightower-Henne: Yeah, so in the next episode, we’re going to talk about the second stage of a divorce, which is all the discovery and documents.

Susan Reff: So that’s where we get to learn all about both sides of the case.

Tracy Hightower-Henne: How much money you spend at Taco Bell? Oh, wait, that’s just me.

Susan Reff: Ok. Until next time. See you then.

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