A General Description of the Divorce Process

Submitted by dave mallon on Wed, 05/09/2012 - 19:21
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Wabanaki Legal News, Winter 2012

The Parties to the Divorce

The wife and husband are called "the parties to the divorce."

How the Process is Started

The party who first asks the court for a divorce is called the Plaintiff.  The other party is the Defendant.  

The Plaintiff must file a document with the court called a “Complaint For Divorce.” 

The Complaint for Divorce form and other divorce forms you will need are available at Tribal Court.  

Tribal Court Jurisdiction

Passamaquoddy Tribal Courts have exclusive authority to hear Domestic Relations cases between members of the Passamaquoddy Tribe, the Penobscot Nation, or the Houlton Band of Maliseet Indians when both parties reside on the Passamaquoddy reservation.  

The Penobscot Tribal Court has exclusive authority to hear domestic relations cases between members of the Passamaquoddy Tribe or the Penobscot Nation when both parties reside on the Penobscot Nation reservation.

Domestic Relations matters include:   

  • Marriage
  • Divorce
  • Parental Rights and Responsibilities
  • Spousal Support
  • Child Support
  • The Tribal Courts can also hear domestic relations cases:
  • Between tribal members residing off-reservation who agree to proceed in Tribal Court. 
  • Between a tribal member and a non-Indian spouse or partner residing on the reservation
  • Between a tribal member living on the reservation and a non-Indian living off-reservation when both parties agree 
  • Between a tribal member living off-reservation and a non-Indian living off reservation when both parties agree

The Passamaquoddy and Penobscot Nation courts have the exclusive authority to hear cases related to Indian child custody proceedings when the child lives on the reservation. When an Indian child is a ward of a Tribal Court, the Tribal Court retains exclusive jurisdiction no matter where the child may be physically. 

State District Courts have the authority to hear Domestic Relations cases when the Tribal Courts do not have exclusive authority.

Grounds for Divorce

"Irreconcilable differences” is a no-fault ground that is used most often in starting a divorce.  It means that the marriage has broken down due to serious, irreparable marital discord.  Although there are other grounds for divorce recognized by Maine law, this is the preferred grounds for divorce because:

  • You do not have to  prove that one person is at fault for the breakdown of the marriage  
  • Your spouse does not have to agree to getting the divorce and cannot stop the divorce from being granted
  • You do not need to prove that there has been wrong-doing by one of the parties

Other Issues Settled in a Divorce Case

A divorce legally ends the marriage.  It changes your status from married to single.  It also determines issues such as:

  • living arrangements for the children 
  • what contact they will have with each parent; 
  • child support and medical support for the children; 
  • who will keep what personal property, such as clothing, household furnishings, vehicles,  personal items, and financial assets; 
  • who will be responsible for which debts
  • whether the wife wants to change back to her former name

Uncontested Divorce

If you and your spouse agree to all of the terms of your divorce, your divorce is an “uncontested” divorce.  If you have an uncontested divorce, the process may be quicker and simpler.  Typically, as long as the court finds the terms acceptable, the court will grant the uncontested divorce and include those terms in the final divorce decree. 

Spousal Support/Alimony

Spousal Support (also called "alimony") refers to money one spouse pays to the other.  This amount is different from child support.  The court may grant it if you lack the means to support yourself.  If this is the case, you may want to request spousal support.  

In deciding whether to grant spousal support, the court will consider the length of the marriage.  It will also consider the following factors for both parties: 

  • age; 
  • the ability of each party to pay spousal support;  
  • employment history and employment potential; 
  • income history and income potential; 
  • education and training;
  • the standard of living of the parties during the marriage; 
  • health and disabilities of each party; 
  • contributions of either party as homemaker; 
  • contributions of either party to the education or earning potential of the other party; 
  • the ability of the party seeking support to become self-supporting within a reasonable period of time; 
  • provisions for retirement and health insurance benefits; 
  • economic misconduct by either party resulting in the loss of marital property or income; 
  • tax consequences of a spousal support award; 
  • tax consequences of the court’s division of marital property; and 
  • any other factors the court considers appropriate. 

How Parenting Issues Will Be Decided

Parenting issues will be decided by the court if the parents cannot agree.  Those issues include whom the children live with, how much contact the parties will have with the children, and how the parents will make decisions about the children’s lives.  

The court will decide parenting arrangements based on what it believes is in the "best interests of the child.”  The court will primarily consider the safety and well-being of the children.  It will also consider other factors such as:  

  • the wishes of the parents; 
  • the wishes of the child or children; 
  • the interaction of the child with parents, siblings, and other persons who significantly impact the child; 
  • one parent's physical abuse or the threat of physical abuse against either the child or the other parent; 
  • chemical dependency or abuse by either parent; 
  • continuity and stability of care; and 
  • developmental needs of the child.

Restricting Contact 

If you believe that the other parent’s contact with the children should be restricted, you can request conditions such as supervised contact.  In order for the court to grant your request for supervised visits with the other parent, you will need to explain why supervised visits are necessary to protect the children. 

Exchanging the Children For Visits 

If you and your spouse do not get along or you feel threatened by him or her, you can include specific information about how the children will be exchanged for visits.  If your relationship with your spouse has been abusive, you might want to set up a meeting place for the exchange that is public and safe, such as the parking lot of a busy restaurant or shopping center.

Setting Up a Residential Schedule

Parenting arrangements and living and visitation schedules can be general or specific. For example, the schedule can state who the children will live with during the school year, during vacations, and for holidays and other special occasions. The more specific you make your parenting arrangements, the less you and the other parent will be able to disagree. 

Child Support

The court will order that child support be paid for the children.  The parties are required to prepare and file with the court a “Child Support Affidavit”.  It contains financial information that the court will use to decide the amount of child support. The court will determine the amount of support based on the parents’ financial information and child support guidelines. 

Medical Insurance

Every child support order must include whether health insurance will be provided for the children.  It also must include how the parents will divide any uninsured medical expenses.  The general rule is that a parent who has medical insurance available through his or her employment must cover the children as long as the insurance is available at a reasonable cost.  If both parents have health plans, they may both provide coverage for the children. 

Financial Statement Regarding Assets, Debts, Income, and Expenses

Both parties to the divorce are required to complete a Financial Statement.  It includes a list of assets, debts, income, and expenses.  This form is available at the court.

Waiver of Court Fees

You can ask the court to waive court costs and fees if you have a very low income and cannot pay. The court clerk has an Application to Proceed Without Payment of Fees (fee waiver form) and an Indigency Affidavit. Check all of the boxes near the top of the fee waiver form to show that you need all costs waived.  List all of your income and expenses on the affidavit form.  The court will look at your income and expenses and decide whether you qualify for the waiver.

Free Legal Help

If you financially qualify, the Maine Volunteer Lawyers Project can provide legal assistance.  Call 888-956-4276 (toll free) or email jmitchell@vlp.org.  Divorce information is available online at  www.ptla.org.