The Court Process: What to expectThe Court Process: What to expect admin Thu, 05/21/2020 - 09:51
All of these motions are handled a little bit differently – there isn’t a one-size-fits-all roadmap for these motions. The way the court process will go from here really depends on which motion you use, and which court you are in. In this section, we will explain the most general steps. If there is anything you are confused about, the Judge, Magistrate, or one of the Court Clerks should explain the next steps in your case, and what your options are.
Note: It is possible that you could have your final hearing at your first court appearance, especially if it is a Motion to Modify Child Support and the responding person does not request a hearing. If it is possible, you should be prepared for your hearing on that day – with all of your evidence, and your witnesses, if you have any. If the court wants to hold a hearing, and you are not prepared, you could ask the judge or magistrate to schedule your hearing for a later date, when you will be able to have your evidence or witnesses there. This is called a “request for a continuance.” It is up to the judge whether to grant the continuance.
This video is about Portland District Court, but can be used for advice on other courts, too. It may help you get a big-picture idea of what to expect at court.
Before the Hearing
Each motion goes through a different process before a hearing. They are summed up below. However, because Motions to Modify and Motions to Enforce can have a similar process, be sure to read both sections if you have a Motion to Modify or Motion to Enforce. If you have a Motion for Contempt, you can skip down to the section on Hearings.
Motion to Modify
If you have kids, your first time in court will be an Initial Appearance with a Family Law Magistrate about your case. If you have kids, some courts may call it a Case Management Conference. If you do not have kids, the court will look at the papers that were filed and decide what to do. Here’s what to expect.
Before the initial appearance
About two weeks after you file your papers, the court clerk will mail both parties a notice. It will tell you where and when you will have your first meeting with the court's Family Law Magistrate.
If you are the person who was served with the motion, you will get the same notice, along with two court forms: an “entry of appearance” form and a child support affidavit (if child support is an issue). Fill out the forms and return them to the clerk before the conference, if you did not already when you filed your written response. Make sure you file your written response within 20 days of being served with it, or 30 days if it is a Motion to Modify child support only.
Finally, give or mail to the other party copies of all papers you file with the court, and keep copies for yourself.
To find out what will happen next, read on. The rest of this information applies to both parties.
At the initial appearance
Go to your initial appearance and be on time. The Family Law Magistrate will go over the issues with you. If you and the other party agree on how your judgment or order should be changed, the Magistrate can sign a court order to make those changes. If you can’t agree, the Magistrate will probably order you to go to Mediation.
In some courts, you could go to Mediation on the same day as the conference. Be prepared to pay the $70 per person mediation fee at this initial appearance. If you cannot afford this, you may ask for a fee waiver. You can get the fee waiver forms from the clerk, or get fee waiver forms from our website. If you do not have Mediation that day, after the conference, the clerk will set the time for the Mediation. Be sure that it is a time when you can be there.
The Magistrate's order will also say what issues still need to be resolved and when the next steps will happen.
If the only issue involves child support, the Magistrate may hold a formal hearing and give a final order that same day.
Make sure you bring proof of income, like your pay stubs, your tax returns, or a letter from your employer about your income. Bring copies of your and your children’s health insurance costs or information, or childcare costs or information. Also bring any existing orders in the case, or any other information you think is relevant.
TIP: Read all court notices carefully, and bring to court all the documents that you are asked to bring.
After the initial appearance
If the Family Law Magistrate gives a final order when you meet with him or her, and you disagree with the Family Law Magistrate’s order, you may object in writing. You must include an affidavit that sets out the relevant facts. File your objections with the clerk and give a copy to the other party.
The filing deadline is 21 days from the date the clerk entered the order on the court docket (usually soon after the Magistrate signed the order). Then a Judge will review the Magistrate's order and your objections. If you do not file a written objection, the order will become final.
Note: If the Magistrate issues an interim order (a temporary decision, until the case is decided), you cannot appeal it. That order stays in effect until the Magistrate or Judge gives a final order.
Motion to Enforce
In cases involving children, a Judge may send the parties to meet with a Family Law Magistrate for an Initial Appearance, similar to the process above. The Judge may instead simply send the case to Mediation or schedule the case for a formal court hearing.
If your case does not involve children (for example, you are asking the court to enforce a section that ordered the defendant to pay for a debt or for spousal support), the judge will move your case in one of two directions:
- Mediation, or
- Formal court hearing
Motion to Modify and Motion to Enforce
Your experience with mediation may be different depending on how complicated your case is, and the court you are in. This is general information about how mediation for a Motion to Modify or Motion to Enforce will work.
If you are sent to Mediation and there is a mediation fee, you will be asked to pay the fee before the Mediation – if you were at an Initial Appearance, the Family Law Magistrate will tell you when to pay it, or it will be written on an order. If not, the court will tell you when to pay. If it does not, come to Mediation with the $70 fee. If you can't afford the fee, ask for a fee waiver. You can get the forms for this from the court clerk, or get the fee waiver forms from our website.
It is possible in some courts that there will be a mediator available on the date of your first court appearance. If you don’t have many issues to resolve, and you are able to work it out quickly, you may not be charged for Mediation.
What to expect at mediation
At the Mediation, the mediator will ask you to explain your problems with the other party. The mediator will also try to help you reach an agreement if you can. You have to mediate in good faith—which means you have to be open to coming to an agreement—but you don't have to agree to anything that you believe won't work or is unfair.
The mediator will meet with each party privately at the beginning of the session. If you have been abused by the other party or you are afraid, talk to the mediator about this in the private meeting. You can ask to be in a separate room during the mediation.
If you still disagree on any issues by the end of the Mediation, you will be sent back to the Judge or Magistrate. If you do agree on any issues, you will sign a written agreement, which will also go back to the Judge or Magistrate. If they approve your agreement, they will write an order. The order will change your original judgment or order to follow your agreement.
Motion to Modify, Motion to Enforce, and Motion for Contempt
At the Hearing
If you and the other person cannot reach an agreement at the Initial Appearance or during Mediation, the court will hold a hearing.
This is a formal court hearing. The Judge or Magistrate will hear each side. You can testify for yourself (tell your story to the Judge or Magistrate), bring witnesses, and present documents. There are rules for what kind of things a person can testify about or what kinds of documents the court can look at. These rules will be followed, so you may want to try to get a lawyer if you can.
To prepare for the hearing, plan what you need to say.
Be ready to tell the court what has happened. If you filed a Motion to Modify, be ready to explain:
- The substantial change in circumstances that caused the need for a change in your court order.
If you brought a Motion to Enforce, be ready to explain:
- How the other party has failed or refused to follow the court order.
If you brought a Motion for Contempt, you should be ready to explain:
- How the other party has failed or refused to follow the Court's order; and
How the other person has the power or ability to follow what they are ordered to do (obey the order).
You will need to show that your proof is correct by a “clear and convincing” standard. This is a high standard of proof, so you should carefully prepare your evidence and what you plan to say;
If you are opposing a Motion to Modify, be ready to explain:
- Why the prior Order should not be changed
- Why there has not been a “substantial change in circumstances”
If you are opposing a Motion to Enforce or Motion for Contempt, be ready to explain:
- How you have followed the order; and/or
- Reasons why you aren’t able to follow the order
Tips to keep in mind
- You may want to make a list of the major facts and points you need to make.
- If you know people who have first-hand knowledge of important facts, you can ask them to testify at the hearing. If a witness is unable or unwilling to come to the hearing, you can subpoena them (see below for how to subpoena a witness).
- If the other party objects, the Judge can’t rely on a letter, or even a sworn statement, from a witness that isn’t there because that is considered to be “hearsay”. The only way you can be sure that a Judge will consider your witness’s statements is by having that person come to the court hearing to testify.
- At the hearing, you will be given a turn to tell your side of the story. You will also have the chance to ask questions of the other party and any other witnesses. The Judge or Magistrate may ask you or others questions. Since you do not have a lawyer, the Judge or Magistrate may help you by explaining court procedures or the law. But they must be neutral and cannot give you or the other party legal advice.
- After the hearing, the Judge or Magistrate will give a final order. You may get the order that day or later by mail.
After the Hearing
If your hearing was with a Magistrate and you disagree with any part of the order, you can file written objections. 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). Then a Judge will review the Magistrate’s order and your objections and give a final order. If you miss this 21-day deadline, you lose your right to appeal or object.
The deadline for appealing a Judge’s final order to the Maine Law Court is 21 days after the clerk enters the order on the docket (usually soon after the Judge signs the order). File your notice of appeal, an order for the transcript you want to use in the appeal, a statement of issues to be decided on appeal, and the fee (unless you get a Fee Waiver) with the District Court clerk. You will probably need a lawyer to help you go forward with an appeal. If no one files an appeal, the order becomes final in 21 days.
Both you and the other party are responsible for following the final order. All of the terms of your original judgment or order, except those that were changed by the new order, are still in effect.