Divorce in Maine: The Legal Process, Your Rights, and What to Expect

By Dana E Prescott and Neil D. Jamieson

Providing accurate and objective information to help make the right decisions during a divorce in Maine, this guide provides answers to 360 queries such as What is the mediation process in Maine and is it required? How quickly can one get a divorce? Who decides who gets the cars, the pets, and the house? What actions might influence child custody? How are bills divided and paid during the divorce? How much will a divorce cost? and Will a spouse have to pay some or all attorney fees? Structured in a question-and-answer format, this divorce handbook provides clear and concise responses to help build confidence and give the peace of mind needed to meet the challenges of a divorce proceeding.

• Language: English
• Publisher: Independent Publishers Group
• Release date: May 30, 2015
• ISBN: 9781940495965

Book preview

Esq.

Introduction

Writing a book about divorce in Maine means writing about the people we serve as lawyers, the judges who daily hear and decide cases, the marshals and clerks who so honorably serve the citizens without much recognition or support, and the other professional disciplines, like social workers, psychologists, medical professionals, teachers, therapists, and others, who advocate for adults, parents, and children. The old days are gone, however.

With ever-evolving technology, social networking, a flatter globe with more mobility for families and organizations, economic turmoil, family re-formation, legal and illegal substance use and abuse, the new poverty, multiculturalism, mental health, and aging populations, the universe of the judicial system is no longer a linear trip between facts (as you perceive them to be facts) and the application of the law (as you may perceive the law against what is actually written or applied in practice by a judge).

In the first instance, accurate and unemotional knowledge is your best form of power before entering the courthouse portal. This is what we try to provide here, without legal citations and loads of cumbersome explanations. But your marriage relationship was not simple, and neither is the process of dissolving that relationship, particularly if you may share economic or parenting obligations after the divorce.

Some may also argue that the judicial system was never so simple, and that is partially true. Laws that must protect against the human propensity for violence and vigilantism must still be flexible enough to consider the uniqueness of each person and family but precise enough to provide determinacy and predictability to the public. Human thoughts and behaviors do not fit so easily when emotion and money commingle in court. So the objective of the law and the purpose of this book share a theme: How can you protect yourself and your children from the emotional and economic cost of litigation? How can you retain the right to personal autonomy and self-determination, which you own when you enter the judicial system?

This is, of course, a book about divorce, but, we hope, much of this book can be read to benefit parents who do not marry or those who may want to know more about what a family member or friend may need to know or is going through. One of the more frustrating aspects of family law is the misinformation and myth that surrounds much of the information available surfing the Internet or heard in the confines of work or social settings. Courts in the United States were designed two centuries ago as adversarial systems with unique rules, both written and unwritten. Since Maine became a state in 1820, the law of divorce has been written by the governor and the state legislature (and today, as well, by Congress as federal laws are enacted), and only then interpreted and enforced by family courts on the ground.

The phrase on the ground matters here because, as a culture, we have turned to the courts to resolve the most important and mundane of parenting and family decisions. From life and death to economic dissolution, to allocation of income, to the allocation of primary residences and access to children, to the right to make medical and educational decisions, to who can get the child a haircut, a court—in the guise of a very human judge—may enter a binding order when there is conflict or disagreement. This is a profound change in the rights and responsibilities of citizens living in a democracy, but it is our reality as lawyers and consumers and professionals, so we should strive to understand that process in a way that will help and guide us through the trips and traps that may come before us.

Thus, as you will read in this book, you will learn that what is written down as the law of divorce is not always what the words mean in practice. Assuming to know the law by perusing websites (often from other states with different written and unwritten rules and traditions) and listening to friends and family members, even well-meaning ones, is often the first mistake. Knowledge must be not just any knowledge, but what you specifically need to know to protect yourself and your family. No lawyer or other professional can do that for you alone. This is your case and your family. Ignoring that reality or maintaining wishful thinking leads many folks down a path that they find most unappealing after a judge rules in their case.

And this point brings us to what you should keep in mind as you read. All the laws in the world cannot account for all the things that one person may do to another. We often tell clients that lawyers would have virtually nothing to do if one spouse was kind and gracious and honest and transparent toward the other spouse. Many are. Many are not. Contrary to one myth, lawyers spend more of their time trying to curb a couple’s baser instincts and salve hurt feelings than they spend prolonging litigation. What is also true is that clients choose their lawyer from among many lawyers, and that choice reflects the values and motives of the spouse.

Divorce lawyers (and other licensed professionals) may behave badly during a case, and some really do use the divorce process to play out their own issues, but clients hire those lawyers and watch how and when that occurs. We believe more informed consumers would more likely select lawyers who value efficiency and honesty and equity and encourage those same qualities in their clients. Every profession has its outliers, and family law holds no exception. What should matter to you as you read this book is that clients who choose to hire lawyers should be informed consumers. You or your spouse does not need to hire a lawyer who holds values inimical to your children’s best interest or who encourages litigiousness and acrimony. You can hire someone who reflects your best ideals and helps mediate and resolve any legitimate disputes with respect, dignity, and transparency.

Even trials, when necessary, can be conducted without carpet-bombing the other person. Indeed, one of the errors the public makes is to confuse intelligent advocacy with blind blustering. This is not a reality TV show. It is your life. Thus, it is important to remember that the turmoil and cost of divorce is a function of personal choices and the selection of lawyers. Courts are the receptacles for litigation with the power and authority to allocate parental rights and responsibilities, child support, spousal support, the valuation and equitable division of assets, the allocation of debts, and the division of personal property, savings, retirement accounts, life insurance, and tangible and intangible assets.

Courts perform these functions by settlement or by trial. We will discuss the advantages and disadvantages of both pathways. What matters is that judges only exercise that power after hearing evidence and trying to decide who is more credible or not after a few hours of listening to parties and lawyers, if available. This book will help unravel some of the mystery behind this process and reveal the potential pitfalls you should try to avoid. Nothing we can write, however, can predict with absolute certainty the variations and unique aspects of your case. What will help you, perhaps most of all, is to limit risk and narrow the uncertainty by protecting yourself with the knowledge we convey in the chapters to follow.

Nearly every day we meet with men and women who are struggling as they contemplate and move through the divorce process. Whether you initiate or respond to a divorce, you are facing a change in every single part of your life. No area remains untouched from a divorce. Parenting, family relationships, finances, social networks, personal belongings, your residence, even your job performance—all affect how your entire personal world is altered in divorce. Our purpose in writing Divorce in Maine is to help you navigate through an uncertain journey while keeping sight of your values, your dignity, and your money.

Divorce is difficult at so many levels—both emotional and financial. We see courageous clients making tough decisions every day in the face of their changing worlds. We know from experience in counseling hundreds of clients over the years, that in order to reach a place of growth and healing, it requires a tremendous amount of support throughout the journey. This book was written to help you move through this time of transition with more clarity and ease. It is not intended to be a substitute for advice from your lawyer. Rather, it is designed to assist you in partnering with your lawyer to reach your goals. The more control and clarity you feel throughout the process, the better you will be able to make sound decisions. Thus, we hope you use this book as a guide to ask your lawyer clear questions, to understand what it is you are struggling with, and to begin seeing the larger journey upon which you now embark.

We hope this effort will also be used by family members and professionals who support you—attorneys, mediators, therapists, clergy, financial advisers, coaches, and others. During your divorce, you will have hard, grief-filled days and you will face uncertainty, but you will get through it. In the end, may you find relief in the letting go of old sadness while acquiring glimmers of hope as you re-create yourself, and design and contemplate new possibilities for you and your family.

Dana E. Prescott and Neil Jamieson

1

Understanding the Divorce Process

At a time when your life can feel like it is in utter chaos, sometimes the smallest bit of predictability can bring a sense of comfort. The outcome of your divorce may be unknown, thus increasing your fear and anxiety. But there is one part of your divorce that does have some measure of predictability, and that is the divorce process itself.

Most divorces proceed in a step-by-step manner. Despite the unique aspects of your divorce, you can generally count on one phase of your divorce following the next. Sometimes just realizing you are completing each stage in the legal process can reassure you that it will not go on forever.

Thus, it is critical that you acquire a basic understanding of the divorce process. This will lower your anxiety when your attorney starts talking about discovery or going to trial and you feel your breathing accelerate and your heart start pounding as frustration and costs mount. Most importantly, understanding the divorce process in the environment of the court will make your experience easier to organize and manage. We frequently hear the complaint that no one told me what would happen. You have the right to know the whats and whens of the process so you can make informed and intelligent decisions about your life.

1.1 What is my first step?

We assume that you have tried to save your marriage, or that you and your spouse made a joint decision to divorce, or that your spouse has decided to file for divorce even if you disagree. We do encourage people considering divorce to make sure they have first explored the decision with a qualified therapist, mediator, or pastor, because once this process starts it does not usually result in a do-over between spouses. So be sure this is a decision you are making with as much rationality, clarity, and independence as you can muster in the moment. If you are the one triggering the divorce, your very first step is to reflect backward in time and make very sure your decision to divorce is one you wish to live with for the rest of your life.

1.2 Do I need a lawyer, or can I represent myself?

The Maine Supreme Judicial Court (called the Law Court by tradition) has written many decisions over many years telling divorce litigants that they have every right to represent themselves in court without a lawyer. The term for doing so is pro se. We believe in the public’s right to do this. Our experience is that some of you will find the cost of a family lawyer unaffordable, but some of you will choose to represent yourselves because you want to do what you want to do and a lawyer’s advice interferes with that behavior. Really—this occurs much more than you might think.

Maine courts have also said, however, that if you represent yourself, you will be held to the same rules of practice and evidence that apply to a client with a lawyer. Fair or not, those are the rules of divorce hearings or trials in Maine for all judges and lawyers and parties. Organizing and conducting a trial, when a settlement is not possible for whatever reason, is not simple. Many of the rules of evidence that apply to all civil cases, including divorce, have evolved over centuries. Some of the special rules or exceptions are a function of legislative policies concerning domestic violence or child abuse, for example.

Even if you read this book and decide to represent yourself, you should find a lawyer or law firm that handles divorce as a regular part of its law practice, so you can consult with them during your case. Whatever you do, you should not wait until the last minute to get that advice, but make sure that your consulting arrangement is comfortable for you and in place before you face a trial.

1.3 How do I find a lawyer?

The best recommendations for a lawyer come from people who have knowledge of a lawyer’s experience and reputation. You can use the Internet to search for fellows of the American Academy of Matrimonial Lawyers, members of the Family Law Section of the Maine State Bar Association, the MSBA’s Lawyer Referral Service, Volunteer Lawyers, domestic violence agencies, Pine Tree Legal Services, or other professional organizations that train and educate lawyers. See Resources at the end of the book for contact information. Look for multiple sources if possible.

However, please be careful with online reviews or one person’s opinion. A lawyer may have handled hundreds of cases over many years ethically and professionally, but then have an outcome that angers one person who may have his or her own agenda.

At a minimum, you should have an initial consultation with an attorney to discuss your rights and duties under Maine law, including creative solutions and referrals to other professionals you may not have considered or even known could help, such as a forensic psychologist or accountant.

Even if you are not ready to file for divorce yourself, your spouse might be, so call to schedule an appointment to obtain information in order to protect yourself. Make sure the lawyer you contact conducts a conflicts check to make sure your spouse has not already made an appointment. This frequently happens in small towns. Except under very unusual circumstances, the lawyer you hire cannot represent both you and your spouse.

Ask what documents you should bring to your initial consultation. Make a list of your questions for your first meeting. You may be quite nervous, so write everything down and take notes. Any competent lawyer will respect and encourage you to do so.

Although you need to start making plans for how you will pay your attorney to begin work on your case, slow down and reflect on what you hear from any lawyer you meet. Ask yourself: Does this advice fit my values? Will this lawyer help me feel safe and protect me from unfair use of the judicial system? Will this lawyer encourage my spouse and me to treat each other respectfully, to tell the truth, to be transparent about finances, and to protect our children from conflict? Am I hearing advice that I would not want my children or family members to hear because it sounds like a plan for an expensive and unforgivable means to reach a solution for my family rather than an intelligent and ethical approach?

1.4 What general steps are taken during the divorce process?

The divorce process typically involves the steps listed below. We will provide more details and definitions later in the book, but this is the basic list to have in mind as you read. This is not a short list because it is intended as a road map that you can save or print. Refer to it when you need to know where you are on the map. Ask questions when you feel lost or when a pathway seems missing or obscured from view.

Client obtains a referral for a lawyer or several lawyers to interview.

Client schedules an appointment with an attorney.

Client prepares questions and gathers needed documents for initial consultation.

Client meets for initial consultation with attorney.

Client pays retainer to attorney and signs a written retainer agreement.

Client provides requested information and documents to their attorney.

Client takes other prefiling actions as advised by attorney, such as opening or closing financial accounts or obtaining records before those records disappear.

If needed, client creates a safety plan and referral to their local domestic violence agency.

Attorney prepares complaint for divorce and affidavits for temporary matters for client’s review and signature.

Attorney files complaint with the clerk of the court and requests hearing dates for temporary matters, if appropriate.

Spouse is served papers by sheriff, or, better yet, voluntarily accepts service.

Mandatory sixty-day waiting period begins when spouse is served or enters appearance in court.

Negotiations begin regarding terms of temporary order on matters such as custody, support, and temporary possession of the family home.

Attorneys prepare financial affidavits and child support affidavits as required by Maine law for filing with the clerk of the court.

If minor children are involved, a case management conference will be held within three or four weeks of filing the complaint, but if no minor children are involved, the court will issue an order with deadlines, including a mediation requirement.

Temporary hearing is held or parties reach agreement on temporary orders, which are then approved by a judge or magistrate.

If there are minor children involved, parties must attend a parent education class such as those offered by Kids First (see Resources for contact information), develop a parenting plan, and participate in mediation.

If minor children are involved, client’s lawyer may recommend the appointment of a guardian ad litem to investigate and make recommendations concerning the best interest of the children or to help the court make better decisions if the case does not settle.

Both sides conduct discovery to obtain information regarding relevant economic facts. If you need discovery concerning parenting matters in Maine, your lawyer will have to ask permission from the judge for good cause.

Client obtains valuations of assets, including expert opinions if needed, because while some property or income can be understood by anyone, some opinions require special accounting or forensic (court) skills, like the valuation of a business or commercial real estate, economic misconduct, pensions, or tax consequences.

Attorney provides a litigation budget to help client anticipate and prepare for the overall cost of litigation and understand why one expert or person is needed more than another, because client may need to prioritize.

Client confers with attorney to review facts, identify issues, assess strengths and weaknesses of case, review strategy, and develop proposals for settlement as early in the case as feasible.

Spouses, with support of attorneys, attempt to reach agreement through written proposals, mediation, settlement conferences, or other forms of negotiation.

Parties reach agreement on all issues so that a written agreement is reached before any trial and early in the case, if possible.

Attorney prepares divorce judgment, parenting plan, and court orders for the division of retirement plans, assets and debts, spousal support, or other matters specific to your case, such as a name change for approval by spouses and attorneys.

If your entire case settles, a fifteen-minute uncontested hearing is scheduled with the clerk so a judge can grant the divorce and incorporate the terms of your settlement into the judgment. The case is then done. You will receive a copy of the signed judgment in a week or so.

If your case has not settled after deadlines set by the judge in an order (often four or five months after filing), a final pretrial conference is held so your case will be placed by the clerk on a trial list in a month or so.

Unless your case is specially assigned because of unusual circumstances or only a short hearing is needed (usually less than two hours), you will receive a trial list from the clerk that includes your case for trial with twenty or thirty other cases that month.

Parties prepare for trial on unresolved issues, including updated financial statements, organization of exhibits to be submitted to the judge, and arrangements for experts and other witnesses to come to court to testify.

Trial preparations proceed, including legal research on contested issues, pretrial motions, trial brief, proposed divorce judgment, preparation of direct- and cross-examination of witnesses, subpoenas of witnesses, and suggestions to the court for posttrial procedures, such as findings of facts or legal arguments.

Client meets with attorney for final trial preparation.

Trial date is set so parties then meet at the courthouse and begin the trial before the judge.

Judge makes decision in writing, usually four to ten weeks after the trial. The clerk mails the decision to counsel for clients to read.

One or both parties immediately decide whether to ask the judge to more fully explain the reasoning of the decision or the facts, or to reconsider the decision.

Judge grants or denies the motion, and then either party has twenty-one days to appeal to the Maine Supreme Court for review of the facts and law found by the trial judge.

If there is no appeal, then the judgment becomes final and the parties must complete all the transfers of property by deed or title, pay all debts or support, implement the parenting plan in good faith, and complete any other parts of the agreement.

1.5 Is Maine a no-fault state, or must I have grounds for divorce?

We get this question a lot. Maine, like most states today, is essentially a no-fault divorce state, which means that most divorces are granted on the grounds of irreconcilable marital differences. This means that unless one spouse raises a fault claim, such as adultery, cruelty, abandonment, or certain physical or mental diseases, neither you nor your spouse is required to prove that the other is at fault in order to be granted a divorce.

Although Maine still has all the fault grounds that the law required for a divorce until the 1970s, we do not recommend that you use this tactic. Most forms of marital fault cannot affect the distribution of property or the award or denial of spousal support. Conversely, economic misconduct, such as spending marital funds on another person for travel or gifts or hiding assets or income, which is then connected to marital misconduct, may be a different matter entirely. A claim of fault by itself, however, may make one party feel better given the hurt and pain at the moment, but it usually only increases the cost of the divorce without adding anything to the end result.

Unlike some other states, to obtain a divorce in Maine, one or both parties must appear in court for a brief final hearing. The testimony of either you or your spouse is likely to be sufficient evidence of irreconcilable differences and that the marriage is irretrievably broken to have it dissolved. The judge may then review the terms of the agreement to make sure it is clear and everyone understands what they have signed but the divorce is typically granted in a few minutes.

1.6 Must I get divorced in the same state in which I got married?

No. Regardless of where you were married, you may seek a divorce in Maine if the jurisdictional requirements of residency are met. In all states, the court in which the divorce is filed must have subject matter and personal jurisdiction. Subject matter jurisdiction means that the court has authority to grant the divorce to you. This is very rarely a problem, but it can happen. For example, in states that do not recognize same-sex marriage, the court may not be able to grant a divorce to such couples, but these are legal matters being litigated all over the country. In most cases, the question is whether the Maine divorce court has personal jurisdiction over one or both parties, a point discussed in the next question.

1.7 How long must I have lived in Maine to get a divorce here?

Either you or your spouse must have been a resident of Maine for at least six months to meet the residency requirement for a divorce. However, if you married in Maine but moved away, have resided in this state during your marriage, or lived with your children in Maine, you may file for divorce here. Whether or not the Maine court can divide property or award support is a complicated legal issue if you both do not reside in Maine at the time of divorce, but a Maine resident is entitled to a divorce even if another state may have jurisdiction (legal authority) to transfer real estate, for example.

If legal residence is an issue or neither party meets the residency requirement, talk to your attorney about other options, such as a legal separation or a petition for a custody and support order. You may also consider a protection from abuse order if you have a legitimate basis for filing such a petition within the