How To: Navigate Your Divorce or Parental Rights Case in MaineHow To: Navigate Your Divorce or Parental Rights Case in Maine admin Wed, 05/20/2020 - 11:10
This guide is here to help you through the Maine Court's family law process. We hope that this will help you feel more confident about dealing with the legal system.
Is this guide for you?
You may use this guide if:
- You are married
- You have children, and
- You want to get a divorce
- You are not married
- You have children, and
- You want to separate or establish "Parental Rights and Responsibilities"
If you are married, but you don't have children together, this is not the guide for you. Read our guide How To: Get a divorce in Maine (without children) for more information.
How to use this guide
We've set up this guide to reflect the most common path divorce and parental rights and responsibilities cases take. The numbered steps are in the order you will need to complete them.
More complicated cases will have other steps, such as an interim hearing or a pre-trial conference. If one of these comes up in your court case, visit these steps in the guide for more information. Since these steps are less common, they are listed below the numbered steps. You can visit this information whenever you need it.
How this guide works:
- We've created this guide so you can walk through a legal process step-by-step. The most common steps are in order and numbered. We've also included information about other, less common, things that might come up during your case. These steps are at the end of the list, and you can visit them any time, if you need them.
- To navigate between sections of the guide, you can either click on the name of the step you want to visit or use the "next" and "previous" buttons on each page.
You may want to start by watching our video, and a new video from the Maine Judicial Branch. They will give you a quick overview of the process. Then move on to the more detailed information below.
Parenting challenges during divorce and separation
We also offer an important guide to effective parenting during a separation - to help your kids cope and to avoid putting them in the middle. This "Families Change" Guide also includes sections for teens and younger children, to help them deal with their difficult feelings during their parents' separation.
Updated August, 2023
The BasicsThe Basics admin Wed, 05/20/2020 - 11:20
Should I get a lawyer?
We provide this information for low-income people who cannot afford to hire lawyers. We recommend that you consult a lawyer if you can afford one.
Also, you should try to get a lawyer if your divorce involves:
- Property issues, such as pensions or real estate
- Major disagreements about your children, or
- Complicated child support calculations
You may want to try to do it yourself if:
- You and the other parent agree on all the legal issues,
- You do not feel that the other parent is a threat, and
- You have little property and few debts, which you can divide fairly
If you are in a relationship with domestic violence, we recommend that you contact your local domestic violence program: 1-866-83-4HELP(44357).
The Maine State Bar Association's Lawyer Referral Service 1-800-860-1460 helps people find lawyers. They charge a small referral fee. As you probably know, "full representation" for a divorce can be expensive. But some lawyers will provide "limited help" for a smaller fee. Also, sometimes a lawyer may take your case based on the possibility that the court will order your spouse to pay your lawyer's fee, assuming your spouse has the ability to pay.
Also, many courts offer Courthouse Assistance Projects. Lawyers and other trained volunteers can help you with filling out the forms and answering other questions you may have. This is not the same as having your own lawyer from start to finish, but it can help people with low incomes get through the beginning steps.
How long will my court case take?
Divorce: You cannot get divorced until at least 60 days have passed after the complaint for divorce is served (delivered to the other spouse). if you and your spouse agree on all or most of the issues, your case could be over in 60 days. If you disagree and the issues are complicated, your case could take much longer.
Unmarried Parents/Parental Rights and Responsibilities: if you and the other parent agree on all or most of the issues, you could finish your case during your first court appearance. If you disagree and the issues are complicated, your case will take longer.
How much will it cost?
Here are some of the costs, which are subject to change:
Summons form: $5
Filing fee: $120
Service fee: $8-$50(It varies depending on which method of service you use)
Mediation fee: $80 (per party; $160 total for two mediation sessions)
You can ask the court to waive the fees if you have a low income and cannot afford them. Ask the clerk for an "Application to Proceed Without Payment of Fees" and an "Indigency Affidavit." Or get these fee waiver forms online. Check all the boxes near the top of the fee waiver form to show that you need all costs waived. On the affidavit, list all of your income and expenses. If you receive TANF, SSI, or General Assistance, the court should waive the fees. If your income is higher, the court will look at your income and expenses to decide whether you qualify for a waiver.
Step One: Get the court formsStep One: Get the court forms admin Wed, 05/20/2020 - 11:24
What forms do I need to fill out to begin a court case?
You can get fillable forms online, except for the Summons. You must get the Summons form from the Court Clerk. The Court charges $5.00 for a signed Summons form.
Get the other forms you need here:
Or you can go to your local District Court and ask the clerk for a forms packet. Tell the clerk if you are married, if you own property (a house or land), and if you have mutual children. The clerk will give you the right set of court forms. The packet also has a page of instructions telling you what to do with the forms and how to "serve" the other party with the forms.
Again, here are the typical costs of getting a divorce:
- Summons form: $5
- Filing fee: $120
- Service fee: $8-$50 (Cost varies depending on which method of service you use.)
- Mediation fee: $80 (per party; $160 total for two mediation sessions)
If you have a very low income and cannot pay these costs, you can ask the court to pay them for you. Go here to get the forms online. Or ask the clerk for the forms: an Application to Proceed Without Payment of Fees (fee waiver form) and a Financial Affidavit. Check all of the boxes near the top of the fee waiver form to show that you need all costs waived. On the affidavit form, list all of your income and expenses. If you get TANF, SSI, or general assistance, the court should waive the fees. (Contact Pine Tree Legal Assistance if you are denied). If your income is higher, the court will look at your income and expenses and decide whether you qualify for the waiver.
Step Two: Fill out the formsStep Two: Fill out the forms admin Wed, 05/20/2020 - 11:26
Carefully fill out all of the forms you need for your case. If you need assistance, the Volunteer Lawyers Project may be able to help.
Step Three: File and serve the formsStep Three: File and serve the forms admin Wed, 05/20/2020 - 11:29
Go back to the information sheet that came with your court forms packet. Read it carefully. It tells you how to serve and file your forms.
Divorce Information Sheet
Parental Rights and Responsibilities Information Sheet (for unmarried parents)
What if I am the one who was served with the papers?
The spouse who files and serves the papers is the "Plaintiff". The spouse who receives the papers is the "Defendant". There is no advantage to being the spouse that serves the paperwork first.
The court papers you receive may include an "Acknowledgment of Receipt" form. This form is used to simplify and expedite the "service" process. By signing and returning the form, you are only agreeing that you got the divorce papers. You are not agreeing to everything in the Plaintiff's Complaint. You will have the chance to explain where you stand on issues at mediation, and any formal hearings you may have.
Defendants need to complete and file an Entry of Appearance form. On this form, be sure to include your correct address. Then the court will know where to send you all important notices and court dates. "File" by mailing or hand-delivering to the court. Send a copy of this, and all your court filings (except for your social security number disclosure form), to the Plaintiff. Keep a copy for your own file.
Defendants also need to complete and file an Answer. You have 20 days to do this, starting from the day you were "served". The divorce form includes a Counterclaim. This Counterclaim is your request for a divorce. If you do not file a Counterclaim and the Plaintiff decides to dismiss the case or does not show up at the final hearing, the court will dismiss your case. Then you would have to file a new complaint, starting all over again in order to get divorced. By including a Counterclaim with your Answer, you are ensuring that your case will move forward even if the Plaintiff decides to dismiss the complaint or does not show up.
Read on. The rest of this information applies to both parents. Within two or three weeks of getting the Plaintiff's Complaint, the court will send both of you a scheduling notice for a Case Management Conference.
- You can avoid paying a "service fee" if the other parent signs the acknowledgement of service form. You can give the papers to the other parent by hand or regular mail. If the other parent does not agree to this, you will have to pay for "service." Learn your options by reading the Information Sheet (see above).
- If you try certified mail service and the defendant does not sign the green postal card, this means either that they refused to sign or that the mail was undeliverable.
- If the defendant refused to sign, you can send the papers by regular mail, then file the green card and affidavit stating how you served the papers and why with the court clerk.
- If the green card comes back saying the mail was undeliverable, then you must try one of the other service methods. See below.
- If you think that one of the two mail methods will work, you can serve copies of your papers before you file the originals with the court. (When you use this "serve first" method, you have 20 days to file your papers with the court after serving them on the other parent otherwise the court will dismiss your case. If you still want to move forward with your divorce at that point, then you’ll have to start the process, and the paperwork, over again.)
- If the mail methods don't work because the defendant is avoiding service, you can use the Service by Sheriff method. This costs more.
- If you can't afford the fee, you can file your papers with the court first, along with your fee waiver application.
- Explain in your application why you need to use Service by Sheriff.
- If the court approves your application, the court will pay for the cost of Sheriff Service.
- When you use this "file first" method, you have 90 days to serve after filing.
- You may not be able to find the other party. If you have made all reasonable efforts but still cannot find the defendant, the court may let you do "Service by Alternative Means."
- Get the court's instruction sheet here.
- Follow the instructions. You may ask for a fee waiver if you cannot afford the cost.
- You can get all the forms you need (listed on the instruction sheet) from the Court Clerk, or online from the Court's website
- This "alternative means" service can be complicated. We recommend that you get help from a lawyer if you can afford it. If you cannot afford a lawyer, you can speak with a volunteer advocate at your local Courthouse Assistance Project, if one exists in your local court.
Frequently Asked Questions
Q. Can I sell or get rid of property?
A. The court has ordered both of your to preserve all marital property while your case is pending. This means that you cannot give away, sell, or destroy any property that your spouse may have an interest in. For example, you can't sell the family car. One parent cannot cancel the other parent's or children's health insurance. These orders are included in the Summons and Preliminary Injunction form (see “Notice to Both Parties” on page 2) that the Plaintiff "served" on the Defendant. These orders apply to both of you. To avoid serious penalties, you need permission from the court to do any of these things. We advise you to talk to a lawyer before doing anything that may violate this order.
Q. What happens if I don't go to a court meeting or hearing?
A. It is important that you show up for all court dates. Be on time and be prepared. If you don't go, you can be "defaulted," which means that the court gives the other party what they want because you didn't show up. The court can also charge you for costs, such as court fees or the other party's attorney fees.
Q. What if I move or change phone numbers while my court case is pending?
A. Notify the court in writing right away if your mailing address or telephone number changes. The court clerk needs to be able to find you. Otherwise, you may not get court notices, causing you to miss important court dates. You can use this court form to notify the court of changes.
Step Four: Making some decisionsStep Four: Making some decisions admin Wed, 05/20/2020 - 11:34
To prepare for your first court meeting, think about the decisions you need to make. The most important decisions are about your children. Learn more about parenting through a divorce or separation by visiting our new Families Change Guide.
What "parental rights and responsibilities" issues have to be decided?
Here are the issues you need to think about, and discuss with the other parent if you can:
- Primary residence (who will the child live with?)
- Parent-child contact (when will the child have contact with the other parent?)
- Decision-making (how will decisions about the child be made?)
- Child support (how much support will one parent pay the other?)
- Medical insurance (how will the child be insured and who will cover uninsured expenses?)
- Tax exemption (which parent will claim the child as a dependent on their taxes?)
Here are some more details about each of these decisions:
- Where will the children be living- with one parent most of the time ("primary residence") or "shared residence?"
- When and under what conditions will the children be visiting the other parent? If you and the other parent can talk about this issue, you may want to agree to a flexible order, like "visits will be at reasonable times." On the other hand, if you expect problems, then you may want to set a schedule so that you can avoid future arguments. If you have good reasons to ask that conditions be put on visits to be put in place (such as supervision by another family member, or no use of alcohol or drugs during visits), raise those issues with the other parent and the Magistrate.
- How much child support will be paid? You can estimate the amount by filling out a Child Support Worksheet. Where both parents will be providing "substantially equal care," you must fill out a Supplemental Worksheet, as well. (NOTE: Parents with very low incomes who may need to rely on TANF to help support their children should avoid agreeing to share primary residence or "50/50." This will most likely result in loss of TANF benefits.) If you have trouble with these forms, get help from a Courthouse Assistance Project. Sometimes you can agree to a different amount if the court approves the reasons for the change. This is called a "child support deviation." If you can't figure this out, the Magistrate will help you. Read more about "deviation" here.
- How will you cover your child's health care expenses? Can either of you get medical insurance at work? Is your child eligible for MaineCare coverage through the state? If your child will be getting coverage through the Affordable Care Act (ACA), which parent should take on this responsibility? How will you share any unmet medical expenses? Read more here about ACA considerations.
- Are there any other child-related issues that you want to include in your agreement? For example, is religious upbringing or medical treatment decision-making an issue?
There are three ways to divide up parental rights and responsibilities: "shared," "sole," and "allocated." In many cases where it is safe for both parents to make decisions together, and where parents have made decisions together in the past, your parental rights and responsibilities will be "shared." The court order may specify how those will be shared. In certain cases, where one parent has abandoned the child or if one parent has prevented the other parent from making decisions in the past, the court may give "sole parental rights" to the other parent. Sometimes the court will "allocate" the rights and duties between the parents if that is in the best interest of the children. "Allocated parental rights" might include allowing one parent to make final decisions after consulting with the other parent, or dividing specific decisions between the parents.
NOTE: While making these decisions, it is always important to put your children first. Learn more about parenting through a divorce or separation by visiting our new Families Change Guide.
If we can't agree, how does a court decide child-related issues?
When the parents can't agree, court make decisions based on the children's "best interests."
Best Interest of the Child Factors
- Child's primary caregiver
- Which parent has been more involved in the day-to-day parenting?
- Who prepares meals for the child?
- Who puts the child to bed?
- Who takes the child to appointments?
- Age of the child
- Switching schools and communities may be easier for a younger child
- An older child may be able to transport himself between parents
- Child's relationship with each parent
- Have both parents been involved or has one been absent?
- Is the child close with both parents?
- Child's preference (if the child is old enough to express her wishes)
- Does an older child want to live with one parent or stay in their current school?
- The judge will listen to, but not necessarily agree with, the child.
- Where and with whom does the child live right now
- What are the child's current living arrangements?
- Is it best to keep them the same?
- The court will consider stability for children.
- Each parent's ability to be a parent
- What is each parent's ability to raise the child?
- What is each parent's ability to give a child love and affection?
- Child's adjustment to their school and community
- Would moving a child from his current school and community cause too much disruption to the child's life?
- The ability of both parents to co-parent and work together
- Will the parents support each other?
- Is one parent more responsible for parenting conflicts than the other?
- Whether an infant is being breast-fed
- If a child under the age of one is breast-fed, should the parenting schedule be made in a way that will let breastfeeding continue?
- Whether there is domestic violence between the parents
- If there is abuse, what is the impact on the child emotionally?
- How can the child be safe?
- Whether either parent is a danger to the child
- Is the child safe with both parents?
- Is either parent living with someone who is a danger to the child?
- Any other factor(s) related to the well-being of the child
What other issues need to be decided in a divorce?
If you are not married, the "parental rights and responsibilities" issues explained above will be your only focus. The court will not help you with dividing up property and debts. And the court will not order spousal support. If you and the other parent own real estate together (such as a home), you may need to file a separate court action to legally divide your property. This is called a "partition action." Or one party can deed their interest to the other, in exchange for money or other property. Again, the court will not help you with this in the context of your Parental Rights case.
If you are married, some more issues will need to be decided:
- Property (how the property you own will be divided)
- Debt (how much debt will be divided)
- Spousal support (whether one spouse will pay support to the other, and how much)
How do we divide up property and debts?
That isn't always an easy question to answer. If you have a lot of property or debts, you should try to get a lawyer. Make sure that you are getting a fair share of real estate, pensions, and retirement accounts.The court will try to divide property fairly, not necessarily equally.
Personal Property: If you don't have much property, then you may be OK without a lawyer. All "marital property" should be divided fairly. "Marital property" is property that either of you got during your marriage (even if it is in your name alone). Generally speaking, property each of you got before you were married, as well as gifts made to you alone during the marriage, or something you inherited during the marriage, are not marital property (i.e. "non-marital property"). Each of you may claim your non-marital property. The divorce order must address how all of your "marital property" has been or is going to be divided. Again, if you have pensions, retirement plans, or other major property issues, try to get a lawyer.
Debts: The same rules apply to debts. CAUTION: No matter how you divide up your debts in your divorce, a creditor can still go after you for debts you both signed for while you were married. For example, you both signed for a joint car loan, even if you agree that your spouse will be responsible for the car loan, the car creditor can still come after you to pay the car loan. If a creditor forces you to pay a joint debt that the divorce court has ordered the other party to pay, you can bring a
"post-judgment motion" to ask the court to order that the other parent pay you back.
Real Estate: If you own a house or other real estate and don't have a lawyer, get this court form: Certificate Regarding Real Estate. Fill it out with the correct Registry of Deeds information, and file it with the clerk. Send a copy to the other party. The court will use this information in drafting your final order. Also, the court will order either you or the other party to prepare another form: Abstract of Divorce Decree. Submit this completed form to the clerk along with a $10 filing fee. Send a copy to the other party. Once you get the signed abstract of divorce decree back from the clerk, you need to send the form and a filing fee to the Registry of Deed in the county where the property is. It is a good idea to call the Registry of Deeds to ask exactly how much the filing fee is before mailing. Once the Abstract is filed in the Registry of Deeds, third parties, like future buyers, can trace how the divorce affected the ownership of the property.
How does the court decide on spousal support, or alimony?
First, Maine law no longer uses the term "alimony." It's called "spousal support." Unlike child support, the court does not have a set formula for determining spousal support. If this is an issue in your case, you should try to get a lawyer. You must ask for spousal support now; you cannot come back to the court later, after your divorce, to ask for it.
There are three types of spousal support in Maine:
- General support
- Transitional support, and
- Reimbursement support
Here are some of the factors that the court will look at to decide whether to award spousal support, for how long, and for what amount:
- The length of the marriage
- The ability of each party to pay
- The age of each party
- The employment history, employment potential, income, and education of each party
- The health of each party
- The contributions of either party as a homemaker
- Economic misconduct
- Tax consequences
- Any other factors the court considers appropriate
The court processes explained next are designed to help you figure out all of these issues. But the process goes faster and more smoothly if you can figure out some of this ahead of time. The court is there to:
- Identify issues you cannot agree upon (Case Management Conference)
- Help you resolve issues that you haven't been able to come to an agreement (Mediation)
- Make sure that your agreement is fair - for your children, for you, and for the other parent. (Uncontested Hearing)
- Decide issues you still can't resolve on your own (Contested Hearing)
- Issue a final enforceable order. (This can be based on your agreement, decided by the court, or a combination of both.)
Frequently Asked Questions
Q. What if the other parent claims they are not the parent?
A. If you are the parent of a child and the other parent disputes that they are the parent, you will have to go through some extra steps in this process. You will need to prove that the defendant is the parent of your child. If this is an issue, check the box on the complaint that asks for "blood or tissue typing tests." You can learn more about "parentage" in Maine in our article "Maine Parentage Act: Who can be a parent?"
Q. What about stepchildren?
A. Beginning in April 2004, the Maine Law Court decided that the trial court can decide whether a stepparent who wants visitation, or other parental rights and responsibilities:
- should be awarded visitation, as a "third party," or
- should be treated as a "de facto parent," having on-going rights and responsibilities like a biological parent.
This ruling raised many unanswered questions that are still being resolved.
If you are a stepparent wanting to be treated as a "de facto parent," you must prove that you have been acting as a real parent to the child. The Court said that you can be considered a "de facto parent" only if you have "fully and completely undertaken a permanent, unequivocal, committed, and responsible parental role in the child's life." This is a complex and rapidly changing area of the law. We suggest that you get legal advice if you plan to seek de facto parental rights.
As with all children's issues, the court's primary goal is to meet "the best interests of the child."
You can learn more about "parentage" in Maine in our article "Maine Parentage Act: Who can be a parent?"
Q. How does the divorce affect my health insurance under the Affordable Care Act (or Marketplace)?
A. Your options for health insurance and your reporting requirements may be affected by your divorce. If you receive a subsidy (reduced cost), review your current health insurance and report any changes in household income or household size. If you fail to do this, you will have to pay back any subsidies that you should no longer be getting. Or you may find out that you now qualify for a larger subsidy. If you lose your health coverage as a result of divorce, go to healthcare.gov to find out if you qualify for marketplace health insurance (or MaineCare). Or speak to a local marketplace representative. Loss of coverage due to divorce allows you to purchase insurance outside of the limited yearly enrollment period.
Q. If the court orders that I should get child support, how do I collect it?
A. You have choices. You can wait to see if the other parent pays regularly. If this happens, you don't have to do anything to enforce the order.
If you are not getting the payments, or think that you'll need help collecting your child support, you have other choices.
- You can ask the Department of Health and Human Services (DHHS) to collect the money and send it to you. The court clerk should have information about how to obtain an application for DHHS services. Or, you can get this DHHS child support information and an application from the DHHS website. Fill out the application and send it to:
Department of Health and Human Services
Division of Support Enforcement and Recovery
11 State House Station
19 Union Street
Augusta, ME 04333-0011
- Be sure to submit all of the documents DHHS requires to open a case with the application. If you don't include everything they need, DHHS may return your application. After DHHA gets your complete application, they will open a case. The sooner you get your information to DHHS, the sooner they can begin the collection process.
If you or your children get TANF, you do not have to sign up for DHHS collection services. You get this service automatically.
- You can give the other parent's employer a copy of your Child Support Order, along with a completed Income Withholding for Support form.
This form orders the employer to withhold the amount owned to you from the other parent's wages each pay period and send the money to DHHS. If you choose this option, you must notify DHHS. Give DHHS your mailing address and keep it up to date. If you move and don't tell them, DHHS will not know where to find you. DHHS then forwards to you any money received from the employer. DHHS will not take any other steps to enforce the court order. This is called a "limited services" option.
Under either option you choose, any money collected on your behalf will be placed on a debit card which DHHS will mail to you. You may use this card at almost every ATM and retailer and any place that accepts VISA. You may also opt to have your child support directly deposited into a bank account. You will not receive paper checks.
If the other parent does not get a regular paycheck, collecting support may be much harder. Your choices are to ask for DHHS services through the application process, hire a lawyer, or try to take the other parent back to court on your own. The last choice may be difficult, depending on the facts of your case. Read about Post-Judgment Motions, then decide if you can do a Motion to Enforce or Motion for Contempt on your own.
If you need more answers from DHHS about establishing or collecting a child support order, call the Division of Support Enforcement and Recovery, at 207-624-4100
Step Five: The first meeting with the court, and how to prepareStep Five: The first meeting with the court, and how to prepare admin Wed, 05/20/2020 - 11:37
After you serve and file the court papers, the court will send both parties a notice. This could be two to four weeks or, in the busiest courts, even later. In the meantime, you can call the court clerk if you want to check when your case is scheduled or to make sure they have received your paperwork.
The notice will give you a date and time to meet with a family law Magistrate. This will be your first meeting with the court. This is called a "Case Management Conference."
Things to do before the "Conference"
o Sign your completed Child Support Affidavit in front of a notary public.
o File the original form with the court clerk.
o Send a copy to the other party.
Court rules require you to do this at least three days before the conference. If you miss this deadline, bring the completed form to the Conference. Save copies for your own file. (Note: if you were the person who started the divorce, you should have already filed out and submitted this form to the court with the original paperwork packet).
2. Read the Case Management Information sheet that came in the mail with your Conference Notice. You can get another copy here.
3. Be as prepared as you can on the issues that the Court Magistrate will bring up at the conference. Spend some time thinking about these issues. Discuss them with the other parent, if that's safe to do. Get more important details here.
Go to the conference. It is a critical step in your court case. Be prepared.
At the Conference
This is a time for you to let the court know what is going on with the children and what other issues will need to be decided. It is also a time for you to let the court know if there is something that you need right away. This can be any immediate issue that can't wait for later court decisions, such as:
- where the children are living
- child support
- problems you are having with the children's schedule
The conference is held in a courtroom. It is run by a Family Law Magistrate. The Magistrate will try to move your case along by:
- Finding out if there is an issue of domestic violence in the family. If there is domestic violence, find a way to tell the Magistrate as soon as possible.
- Helping you come to an agreement, if you can, about the most important issues - especially issues that affect your children, like residency, parent-child contact, and child support. Read more about these decisions that affect your children in Step 4: Making some decisions.
- Finding out what issues you have not been able to agree upon.
- Giving a written order that says what you have agreed on, what issues still need to be decided, and scheduling the next steps. You will each get a copy of this "Case Management Order." Be sure that you read it and understand it. Mark any upcoming court dates on your calendar. If you do not understand something on this Order, ask the Court Clerk to explain. Or get help from the Maine Volunteer Lawyer's Project here.
You may be ordered to attend a "Kids First" program. There you will learn about helping your children through the separation process. Also, we suggest our "Families Change Parents Guide," which offers you useful parenting strategies during this challenging time.
- To determine child support, the Magistrate will need proof of your income, including your most recent W-2 and paystub. Bring that information to the conference.
- The Magistrate has the duty to do what is in the best interests of your children. The Magistrate will also tell you about how important it is for you to focus on this goal. Before you go into the conference, think about what should happen so that your children will get what they need. If you are talking with the other parent about an agreement, remember that the court will be looking to see if the children's needs are being met. If you are having trouble deciding these issues, the Magistrate may appoint a guardian ad litem to represent the children. Read more about your parental rights and responsibilities and parenting strategies during a divorce here.
- If you have agreed on all issues before the conference, the Magistrate can help you by-pass the rest of the steps. If you have not agreed on all issues, the next step will probably be mediation. Be ready to pay the fee ($160 total, or $80 each, unless you get a fee waiver.) and to set a mediation session for a time when you can both be there.
Note: If you need an interim hearing to resolve emergency issues before all of the above steps have been completed, the Magistrate will schedule that next.
Frequently Asked Questions
Q. What is a "guardian ad litem" and do I need one?
A. Sometimes a "guardian ad litem" (GAL) is asked to look into difficult issues and recommend solutions. A GAL is a person trained to investigate problem issues and report back to the court on possible solutions. For example, a GAL might look into a parent's addiction issues and recommend whether this should affect parental rights. If you think your children would benefit from having a GAL, this is the time to ask. A Magistrate can appoint a GAL.
GALs charge an hourly rate. If you think that you need a GAL but cannot afford one, as the Magistrate whether the court would be willing to help you find a free or reduced-fee GAL. There is no guarantee of this. It may not be possible to have a GAL if you and the other parent cannot afford to pay and the court decides that your case does not require a GAL.
Learn more in our article: What is a Guardian ad Litem?
Step Six: MediationStep Six: Mediation admin Wed, 05/20/2020 - 11:43
Mediation is a process in which a mediator tries to help parties come to agreements. A mediator is a trained neutral who does not take sides. The mediator will try to help you solve these issues:
- Where the children will live
- When the other parent will have contact with the children
- How you plan to make decisions about children
- Amount of child support
- How the children's health care will be covered
The cost of court sponsored mediation is $160 total - that's $80 per party. If you cannot afford to pay these costs, you can use these fee waiver forms to apply to have this fee waived by the court.
Again, it is important to prepare ahead of time. Read more about the decisions you will need to make.
In the case of divorce, the Mediator will ask about:
- How you will divide your marital property and debts
- Whether one party will pay spousal support
NOTE: If you are not married, then the court will address your child-related issues. But it will not help you divide up your property and debts. You will have to figure this out on your own.
You must mediate in "good faith," but you don't have to agree to anything that you believe is wrong or wouldn't work. If the other party has abused you or you are afraid, ask to meet with the mediator alone to tell the mediator that you are afraid. You can ask to be in a separate room from the other party during the mediation.
NOTE: You can choose to use a private mediator, rather than the court mediator. But you must pay the mediator's fee.
The mediator will give the Magistrate a report. This report outlines any agreements you were able to reach during the mediation. The report only notes what agreements were reached and what issues are still disputed. There are no notes about what offers were made, or what either party said during the mediation. Mediations are confidential.
After mediation the Court will schedule a status conference where the Magistrate will review the report and decide the next step.
Frequently Asked Questions
Q. Do I have to go to mediation if I am afraid of my spouse or former partner?
A. The court may waive mediation "for extraordinary cause." For example, if you think trying to mediate will trigger abuse, you may ask the court to let you skip mediation. You can ask the Magistrate to do this in person at your first court meeting (the "Case Management Conference") or at a later Status Conference.
Or you can ask at any time in writing. Send a letter to the court or file a more formal motion. Explain what has happened to make you afraid of the other party. If you include a sworn affidavit, you must sign your affidavit under oath in front of a notary public. Attach a copy of your Protection from Abuse Order, if you have one. File these papers with the court clerk. The clerk will ask the Judge to look at them and decide whether or not you will have to mediate.
If you get to mediation and you are still afraid, ask the mediator to talk to you in private about your concerns. The mediator can allow you to stay in separate rooms. In extreme cases, the mediator can decide that mediation won't work, or can stop mediation after it starts if someone is threatened.
We encourage people affected by domestic violence to try to get a lawyer. A good first step may be to contact your local domestic violence program: 1-866-83-4HELP.
Step Seven: The status conferenceStep Seven: The status conference admin Wed, 05/20/2020 - 11:44
Your next step may be a status conference with the Magistrate. You may have more than one status conference during the course of your case. At these meetings, the Magistrate assesses where you are with your case and where to go from here. The Magistrate's goal is to move your case along as quickly as possible but also carefully. These are some typical options:
- If you or the Magistrate think that more mediation would help you resolve more issues, you may be sent back to mediation. (The $160 fee covers two sessions. If you go beyond two sessions, you must pay another fee - unless you get a fee waiver.) If you only need one session, you can write a letter to the court asking for $80 to be refunded.
- After two mediation sessions, or whenever the mediator decides that further mediation is not going to help, the mediator will probably schedule you for a Pre-Trial Conference.
- If you have resolved all issues since the last mediation, the Magistrate can hold a brief uncontested hearing, review your agreement and sign a final order. Or the Magistrate can schedule your final uncontested hearing on another day.
NOTE: If your final hearing is uncontested, or if child support is the only remaining issue, the Magistrate will hold the final hearing. You can request that a Judge hear your case instead. This option could slow your case down - and in most cases does not provide any real advantage.
In all other cases (all contested hearings with issues other than child support), the final contested hearing is held by a Judge.
Step Eight: The uncontested final hearingStep Eight: The uncontested final hearing admin Wed, 05/20/2020 - 11:47
If you have agreed on all of the issues, the court will schedule you for an uncontested hearing. This will be the final step.
At the hearing, the Magistrate (or Judge) will ask the Plaintiff to answer a few simple questions, such as:
- When and where were you married (if you are married)?
- What is your spouse's/partner's name?
- What are the names and ages of your children?
- Has your marriage been "irretrievably broken?" (You have tried but cannot "save" the marriage.)
- Can you explain the terms of your agreement? (The Magistrate will have a copy and may read it off to you, asking both of you if it accurately states your agreement.)
- Do you want the court to issue a final judgment based on your agreement? (The court wants to make sure that you willingly agree - that are not being forced, threatened, or coerced.)
After this very short hearing, the Court may sign the Divorce Judgment (or, for unmarried parents, the Final Parental Rights and Responsibilities Order). The clerk may give you a copy that day, or you may receive it in the mail a few days later. The Order takes effect when the clerk enters it on the "court docket," usually the same day as the Magistrate signs it.
What is an interim hearing? Do I need to have one?What is an interim hearing? Do I need to have one? admin Wed, 05/20/2020 - 11:49
When there are urgent issues that need to be addressed before your case is finished, you may want to ask for an “expedited interim hearing.” An interim hearing is not held in every case, but it can happen at any stage before a final hearing if and when it is needed. The court considers many factors when deciding whether or not to hold an interim hearing. For example, the court may decide to have an interim hearing if your child will be hurt by the delay, or a delay will make it harder for the court to later make a full and fair decision. You can ask the Magistrate for an interim hearing or fill out and file this form: FM-218 Motion for Expedited Hearing. Make sure to keep a copy of the form for your records and send the other parent a copy when you file it with the court.
An interim hearing is a formal court hearing. The Judge or Magistrate will hear each side. You can speak for yourself, bring witnesses, and present documents. Court rules of evidence and procedure are followed.
After the hearing, the Judge or Magistrate will give an interim order (a temporary order). Both you and the other parent will need to follow the interim order until your final court hearing.
I have been scheduled for a pre-trial conference. What is that?I have been scheduled for a pre-trial conference. What is that? admin Wed, 05/20/2020 - 11:51
As you have seen, the Court does everything it can to try to help you come to an agreement about the terms of your Court Order. But sometimes that just isn't possible. If the Court thinks that you have exhausted all other possible solutions, the Magistrate will schedule a "pre-trial conference." Perhaps something will happen during the conference to help you decide your final difficult issues. Failing that, at the conference the Court will issue a "pre-trial order" which includes:
- The date and time of your final hearing
- Whether a Judge or a Magistrate will hear your case
- Your deadline for telling the other party what witnesses and documents you will be using at the hearing (if any)
- A list of the unresolved issues that need to be decided at the hearing
Can I appeal if I don't like the result?Can I appeal if I don't like the result? admin Wed, 05/20/2020 - 11:56
Magistrate's Final Order
If you disagree with any part of the Magistrate's final order, you can file written objections. Be specific about what parts you object to and what you think that part of the order should say. Deliver or mail this to the clerk and send a copy to the other party. The deadline for filing objections is 21 days from the date the clerk entered the order on the court docket (usually soon after the Magistrate signed the order). If you miss this 21-day deadline, you give up your right to any further appeals.
Then a Judge will review the Magistrate's order and your objections and give the final order of the court.
Judge's Final Order
The deadline for appealing a Judge's final order to the Law Court is 21 days after the clerk enters the final order on the docket. File any appeal with the District Court clerk. You will probably need a lawyer to help you go forward with an appeal. Although some of the costs can be waived, appeals are expensive.
CAUTION: Generally speaking, the court reviewing an appeal can only overturn "mistakes of law." So, if you think that the Judge has made a legal error, you can appeal that issue. This means that you think the Judge violated an existing law. However, in many cases, you may disagree only with the Judge's "findings of fact." In other words, the Judge based the decisions on someone else's version of the truth, not yours. In that case, the appellate court rarely second-guesses the trial court Judge. It will almost always adopt a trial court's findings of fact (assuming they are based on some real evidence). So this is not a good reason to appeal. We advise talking to a lawyer, if you can, before investing time and money in an appeal.
I have a contested final hearing. How do I prepare?I have a contested final hearing. How do I prepare? admin Wed, 05/20/2020 - 11:54
The contested final hearing is a formal court hearing (like the interim hearing, if you had one). The Judge (or Magistrate where child support is the only issue) listens to both sides, then issues a final order. You may give your own testimony and present witnesses and documents. You may cross-examine the other party. The court rules of evidence and procedure apply.
The Magistrate (or Judge) may tell you on the day of the hearing what the final order will say. Or you may receive it in the mail after it has been drafted and signed. The Order takes effect when the clerk enters it on the "court docket," usually the same day the Judge or Magistrate signs it.
ReviewReview admin Wed, 05/20/2020 - 11:58
- Decide if you should get a lawyer or if it is reasonable and safe to go forward on your own.
- Read this online guide to learn about the legal process.
- Read our Families Change: Parents Guide to learn about helpful parenting strategies during a separation.
- Get your court forms packet. The Summons costs $5.
- Read the court forms instruction sheet.
- Fill out the forms. Get help if you need it.
- Serve and file the forms.
- Prepare for your court meetings and hearings.
- Go to all scheduled court appearances.
- Follow the steps and directions you get from the Magistrate.
- Look back at this guide and ask for help when you have questions.
- Take it one step at a time. You can do this!