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FAMILY LAW PROCEDURES

By Theodore Murray,2014-07-09 07:37
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FAMILY LAW PROCEDURES

    FAMILY LAW INFORMATION AND INSTRUCTIONS

    CONFIDENTIALITY: If you have concerns about confidential information such as addresses and/or social security numbers, please consult an attorney and do not attempt to do this on your own. You should also know that Domestic Violence Protection Orders or Stalking Orders are available free of charge at the circuit court clerks’ offices. You may request assistance in obtaining Domestic Violence Protection or Stalking Orders from your local domestic violence or sexual assault program or you may call the Wyoming Coalition Against Domestic Violence & Sexual Assault (1-800-990-3877). There are also private attorneys that are willing to assist clients in these matters. If you have ever obtained a Domestic Violence Protection Order, this information should be indicated in the Complaint for Divorce or the Counterclaim. A

    Domestic Violence Protection Order generally will be in effect for up to three (3) months and any provision included in that order (such as child custody and/or support) will end when the order expires.

    Read through the following information and instructions before completing the forms to ensure that you qualify to file a divorce in Wyoming. To file a complaint you must live in Wyoming for at least sixty (60) days before you file.

Step 1. Getting Started. The following forms are required in all uncontested

    divorce cases. It is recommended that you complete all of these forms before you file the Complaint for Divorce so that they will be ready to be filed at the appropriate time:

    1. Vital Statistics form

    2. Complaint for Divorce (with Children)

    3. Summons

    4. Acknowledgement and Acceptance of Service

    5. Confidential Financial Affidavit

    6. Affidavit for Divorce Without Appearance of Parties

    7. Confidential Statement of the Parties for Child Support Order

    8. Decree of Divorce (with Children)

    9. Order for Income Withholding

    10. Income Withholding for Support (or, you can open a case with your local child

    support enforcement agency)

    *If you are getting divorced in Laramie County, a Supplemental Order is also required. **Other forms may be required depending on the Court and on your situation. If additional forms are needed, they will be discussed below where applicable.

Step 2. File your divorce case. A divorce case begins with the filing of a

    Complaint for Divorce. A Complaint for Divorce is a written request to the court for a divorce.

    The person who originally asks for this legal action is called the plaintiff and remains the

    plaintiff throughout the case.

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     Notarizing Signatures. You will need to sign the Complaint for Divorce and have it notarized.

     Notarial Officers may administer the oath and witness your signature, or in many cases, Clerks of Court

    will be willing to administer the necessary oath. Each Clerk’s office has their own policy so check with them first before seeking notarization of your signature on the forms. The Complaint for Divorce is given to the Clerk of the District Court, whose office is

    usually located in the county courthouse or a branch of the county courthouse. A list of the Clerk of District Court for each Judicial District is included in the packet. You will file your case in the District Court in the county where either you or your spouse resides. A case number, also called a civil action number, is assigned and an official court file is opened. Delivering the Complaint for Divorce to the clerk’s office is called filing a case. A filing fee is required. Ask

    the Clerk what the amount of the filing fee is and what forms of payment are accepted.

    Case Number: When you start a lawsuit by filing the paperwork with the Clerk of the District Court, a

    case number will be assigned by the Clerk. You must include that case number on all further paperwork

    in the “caption”. The caption is the top section of a pleading, motion, and complaint stating the name of

    the plaintiff, the defendant, the District Court the case is filed in and the case number.

    At the time you file the Complaint for Divorce, you will also need to provide the Clerk

    with the Vital Statistics form. Fill out all portions of this form EXCEPT the “Decree” section, which will be completed by the Clerk when your divorce is final. You will also need to have the Clerk sign (a/k/a “issue”) the Summons.

    Take the original and two (2) copies of each document to the Clerk’s office. The Clerk

    will give you copies of each document back after stamping them with the date they were filed. This is called a “file stamp”. You should keep one copy of each document for your records. The other set of documents will need to be served upon the defendant.

RECAP for Step 2: To start your divorce case, you will need to file the following documents with the Clerk of the District Court’s office located in the county courthouse in the county where either you or your spouse resides: A. Vital Statistics form. a. Fill out all portions, EXCEPT the “Decree section, which will be completed by the

     Clerk when your divorce is final);

    B. Complaint for Divorce (with Children); and

    C. Summons (If the defendant has already signed the Acknowledgement and Acceptance of Service, you may file it now and you can then skip to Step 4 or Step 6 depending on your situation) D. Pay the filing fee E. Take the original and two (2) copies of each document to the Clerk’s office.

     a. The Clerk will give you both copies back after file-stamping them

    b. You should keep one copy for your records.

    c. The other set of documents will need to be served upon the defendant.

    Step 3. Serve the Defendant. Once a case has been filed, a copy must be

    formally given to (a/k/a served on) the defendant. The person against whom the original legal action is being requested is called the defendant, and he or she is expected to answer the

    Complaint for Divorce. The defendant remains the defendant throughout the case. Personal

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service of the Complaint for Divorce and Summons on the defendant by a sheriff is required for

    the Complaint for Divorce unless the defendant completes an Acknowledgment and Acceptance

    of Service form. Formal service is required for the Complaint for Divorce so the Court has proof

    that the other party actually received the papers. Other forms of service exist, but these are the easiest methods that meet the formal service requirement for a Complaint for Divorce. If you

    cannot serve the defendant by either of these methods, ask the Clerk for additional forms for

    alternative methods of service.

    You MUST give the defendant official notice that you have filed for divorce within 90

    days from the date you filed the Complaint for Divorce. This is done by serving a copy of the Summons and Complaint for Divorce upon the defendant or by having the defendant sign an Acknowledgment and Acceptance of Service form stating a copy of those documents were received. If you do not serve the defendant within 90 days, your case can be dismissed by the

    Court.

    A. How to Serve the Defendant. Choose ONLY ONE of the following options to

    serve the defendant:

Option 1 Service by Sheriff

    Summons. It is recommended to have a sheriff in the county where the defendant can be found serve him or her with the papers. There will be a separate service fee (usually thirty-five

    ($35.00) dollars in Wyoming). You can contact the sheriff’s department in the county where the

    defendant lives to determine the fee charged by the sheriff. This is also true if your spouse is

    going to be served out of state. You will need to provide the sheriff with a copy of the Summons

    and Complaint for Divorce to be served on the defendant.

    Proof of Service. The sheriff’s office will complete the last page of the Summons called

    the “Return(or they may have their own form - an “Affidavit of Service”) and will usually file

    the original with the Clerk’s office and send you a copy. If you receive what looks like the original “Return” or “Affidavit of Service” from the sheriff, call the Clerk’s office to ensure the

    original has been filed. If it has not, then file the original with the Clerk’s office and keep a copy

    for yourself. This is the proof that the defendant was given proper notice.

    Note: Once the defendant has been served, you MUST file the original Summons and

    Return (or Affidavit of Service) with the Clerk’s office so that the Judge knows that

    proper service was made.

OR:

Option 2 Acknowledgement and Acceptance of Service. If the defendant agrees, he or she

    may sign a form stating that a copy of the Summons and Complaint for Divorce were received.

    If the defendant agrees, you will need to fill out an Acknowledgement and Acceptance of Service

    form. The defendant must sign this document in front of a notarial officer.

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     Proof of Service. Once the Acknowledgement and Acceptance of Service form is signed,

    take the original and two (2) copies of the signed form to the Clerk’s office for filing. You

    should keep one copy for your records and provide the other copy to the defendant.

    Note: You must file the signed Acknowledgment and Acceptance of Service form with

    the Clerk’s office so that the Judge knows that proper service on the defendant was made.

     RECAP for Step 3: You MUST give the defendant official notice that you have filed for divorce within 90 days from the date you filed the Complaint for Divorce. Choose one of the following methods:

    Option 1 Service by Sheriff A. Provide copy of the Summons and Complaint for Divorce to Sheriff where the defendant lives; B. Pay the service fee; and C. Once the defendant is served, be sure the original Summons and Return or Affidavit of

    Service are filed with the Clerk’s office; OR

    Option 2 Acknowledgement and Acceptance of Service A. Provide a copy of the Summons and Complaint for Divorce to the defendant; B. Have the defendant sign the Acknowledgment and Acceptance of Service form in front of a notary; and C. File the original Acknowledgment and Acceptance of Service form with the Clerk’s office.

Step 4. Wait for the Defendant’s time to Answer to expire. Once

    the defendant is served, he or she has 20 days (if served in the State of Wyoming or 30 days if served out-of-state) to file an Answer to the Complaint for Divorce. You must wait for the

    appropriate time period to expire before you can proceed with the divorce case. You must wait the 20 days (or 30 days if served out-of-state) even if the defendant tells you that he or she is not going to file an Answer.

    ; Computation of Time Limits. - In computing most time limits, unless otherwise

    stated, the day the document is served shall not be included. The last day of the time

    period is included, unless it lands on a Saturday, a Sunday, or a legal holiday, or, if

    the Courthouse is closed then the time limit will be on the very next day that the

    Courthouse is open. If you have questions about time limits you should seek the

    advice of an attorney.

    ; While waiting, move on to Step 5. You can also use this time to continue to work on

    the other required forms to be sure they are filled out completely and correctly.

     RECAP for Step 4: You MUST wait for the defendant’s time to file an Answer to expire before you can proceed

    with your divorce case. In the meantime:

    A. Mark on the calendar when the defendant’s time to Answer expires; B. Move on to Step 5 while waiting; and C. Use this time to ensure the required forms are filled out completely and correctly.

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Step 5. Initial Disclosures. The law requires certain information be made

    available at least thirty (30) days after the defendant is served, including a schedule of financial assets; schedule of non-financial assets; schedule of all debts owed individually or jointly; location(s) of safety deposit box(es); employment information; information regarding other income and retirement accounts; and a summary of the facts believed to support the claim of superior entitlement to custody where child custody is at issue. Both parties are required to provide this information in order to fully disclose all assets and debts of the parties. EXCEPTON: If you and the defendant agree on all issues in your divorce and you both are signing the Decree of Divorce, then you do NOT need to complete the Initial Disclosures

    and you can move on to Step 6.

    Please note that “A party must make its disclosures based on the information then reasonably

    available to it and is not excused from making its disclosures because it has not fully

    completed its investigation of the case or because it challenges the sufficiency of another

    party's disclosures or because another party has not made its disclosures.”

    A. WHEN TO SERVE: Initial Disclosures must be sent to the defendant (or

    his/her attorney) WITHIN 30 DAYS AFTER THE DEFENDANT IS SERVED. Be sure

    to keep a copy of this document for your records.

    B. DO NOT FILE THE INITIAL DISCLOSURES WITH THE COURT. This

    form is only given to the defendant (or his/her attorney).

     RECAP for Step 5: You MUST provide your Initial Disclosures to the defendant within 30 days after the

    defendant is served with the Summons and Complaint for Divorce unless you and the defendant agree on all issues

    in your divorce and you both are signing the Decree of Divorce. A. Mark on the calendar the deadline to send your Initial Disclosures; and B. Send your Initial Disclosures to the defendant by the deadline.

     C. DO NOT file the Initial Disclosures with the Clerk’s office.

    ************************************************************************

Step 6. Once the time for the defendant to file an Answer has expired and, if applicable,

    you sent your Initial Disclosures to the defendant, then several options exist to move your case forward to get a Decree of Divorce. Pick the option that best describes your

    situation:

    Option A. If the defendant filed an Answer or Answer and Counterclaim and

    you both agree on all of the issues of your divorce, follow Option A below.

    Option B. If the defendant did not file an Answer or Answer and Counterclaim,

    follow Option B below.

    Option C. If the defendant filed an Answer or Answer and Counterclaim and

    you do NOT agree on all of the issues of your divorce, follow Option C.

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Option A. The following instructions apply if the defendant filed an

    Answer or Answer and Counterclaim, and you both agree on all of

    the issues of your divorce. If you and the defendant agree on the issues involved in your divorce, then you will need to complete the following:

    A. Fill out a Confidential Financial Affidavit and attach all required documents

    (tax returns for previous two years and statement of earnings for the current year).

    ; Both parties are required to file a Confidential Financial Affidavit including the

    required attachments with the Court. If the defendant does NOT file a

    Confidential Financial Affidavit, you will need to complete an Affidavit of

    Imputed Income to show the Court how much money the defendant makes. This

    is an additional form contained in your packet.

    ; Required Attachments. The Confidential Financial Affidavits of the parties

    must be supported with documentation of both current and past earnings. Proper

    documentation of current earnings includes, but is not limited to, pay stubs,

    employer statements, or receipts and expenses if self-employed. Documentation

    of current earnings shall be supplemented with copies of the most recent tax

    return to provide verification of earnings over a longer period. Include copies of

    income tax returns for the previous two years and your most recent pay stub(s) to

    show how much you have made so far this year.

    B. Fill out an Affidavit for Divorce Without Appearance of Parties. This form

    provides the admissible evidence the Court needs to enter a Decree without requiring the parties

    to attend a hearing.

    C. Fill out a Confidential Statement of the Parties for Child Support Order. This

    form provides the Court with personal information (such as social security numbers and birth dates) of the parties involved in your case as required by statute, but permits the information to be located in a confidential file so that the general public does not have access to the information.

    D. Fill out a Decree of Divorce (with Children) This form will need to be filled out

    completely, signed by both you and the defendant and both of your signatures notarized. Here are some helpful hints in completing the Decree of Divorce:

    ; Custody and Visitation. You and the defendant need to determine which

    custody and visitation plan will apply in your circumstances. It is unusual for the

    Court not to award any visitation or supervised visitation for the defendant.

    ; If there is a concern that your child(ren) may be harmed by the other parent

    physically and/or emotionally, you should seek advice from someone familiar with

    parenting and child development issues. There may be an organization in your

    community that can help facilitate visitation between the children and you or the Family Law Information and Instructions

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    other parent. You can also contact the facilitators of any parenting classes in your community for ideas or additional resources.

    ; Child’s interests should control. The use of a calendar for scheduling purposes

    is highly recommended. The parents' work schedules and the child(ren)'s school and extracurricular activities need to be considered when developing a Parenting Plan. This is especially true for those parents who do not enjoy a traditional work week. While parenting time should be an enjoyable and enriching experience to both parents and child(ren), it is an obligation and responsibility for each parent as well as a right and a privilege. Both parents must also have a good faith commitment to developing and carrying out a Parenting Plan. You need to focus on what type of parenting schedule would be in the child(ren)’s best interest.

    ; ASSUMPTIONS. There are some basic assumptions behind a shared Parenting Plan, including:

    1. Both parents are fit to care for the child(ren).

    2. Both parents desire to have an ongoing relationship with each child.

    3. Both parents are able to carry out the childcare plan.

    4. Any negotiated solution with meaningful input from the parents

    (and, where applicable, the child(ren)), is preferred to a Court

    imposed solution.

    5. It is usually in the child(ren)’s best interest for each parent to have

    frequent, meaningful and continuing access to the child(ren).

    6. That the child(ren) need(s) reliability, predictability and

    consistency on the part of each parent.

    7. That the child(ren) need(s) continuous access, direct experience

    and openness of communication with each parent and an absence

    of involvement in the mutual blaming of the parents.

    ; GENERAL RULES. Experience has dictated a number of common sense

    guidelines that should be followed in every case. Some of these guidelines are also supported by law. Except as otherwise ordered by the Court:

    1. Both parents are entitled to access to records and information on

    the medical care of the child(ren) directly from the health care

    provider as well as from the other parent. Each parent should

    notify the other promptly of any significant medical treatment.

    2. Both parents are entitled to access to all school records of the

    child(ren) and each should make arrangements with the school for

    access.

    3. Both parents are reminded that parenting time and child support,

    while they may be emotionally connected, are separate legal issues.

    Wyoming case law provides that parental access may not be denied

    due to the failure to pay child support. It also provides that child

    support may not be withheld due to the failure of a parent to allow

    access.

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    4. Parents should share with each other their residence and work

    addresses and phone numbers.

    5. Each parent should encourage the child(ren) to initiate telephone

    and/or mail contact with the other parent on a regular basis. 6. The parents should not discuss their marital problems with the

    child(ren). They should not try to turn the child(ren) against the

    other parent by discussing with the child(ren) the shortcomings of

    the other parent.

    7. The parents should not attempt to buy the favor of the child(ren)

    with presents, special treatment, special privileges or promises. 8. Parents should not make their child(ren) choose between the two

    parents.

    9. Parents should not question their child(ren) regarding the activities

    of the other parent.

    10. Parents should not make promises that cannot be kept. 11. Parents should not fight with the other parent in the presence of

    their child(ren).

    12. Parents should be prompt with appointments with the child(ren). It

    is unfair to keep a child waiting, and worse, to disappoint the

    child(ren) by not showing up at all. When unforeseen

    circumstances prevent compliance within approximately fifteen

    (15) minutes of the scheduled time of exchange, immediate

    notification should be given, if possible, and appropriate

    alternative arrangements should be made. Alternative

    arrangements may include delayed scheduling, make-up access, or

    skipped access. For those occasional circumstances when a parent

    cannot meet the prearranged schedule, that parent should be

    responsible for the reasonable expenses incurred for child care,

    unless otherwise mutually agreed upon by both parents. 13. Parents should coordinate plans regarding bedtime, discipline,

    homework schedule and other household rules.

    ; FACTORS TO BE CONSIDERED. The Decree of Divorce contains several

    options and ideally both parents will work together to select the proper child care

    plan depending upon the family circumstances. Consider:

1. The geographic location of each parent;

    2. Each parent's willingness and ability to perform the child care

    duties associated with the child(ren), relative to the child(ren)'s

    stage of development such as feeding, changing, bathing, preparing

    the child(ren) for school, taking responsibility for the child(ren)'s

    homework, etc.;

    3. Each parent's ability to care for the child(ren)'s needs (consider not

    only historical involvement but a parent's willingness and ability to

    learn the necessary skills, as well);

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    4. The lack of hostility between the parents;

    5. The ability of both parents' work schedules and the child(ren)'s

    schedule to accommodate extended access;

    6. The child(ren)'s age(s) and strength of attachment to each parent;

    7. The child(ren)'s relationship with his/her friends.

    ; Parenting classes. At any time the Court may require parents to attend appropriate parenting classes, including, but not limited to, parenting classes to lessen the effects of divorce on children. Both parents are generally required to attend classes when they are ordered. If the class is ordered, you MUST file a Certificate of Completion with the Clerk’s office. This certificate is provided by

    the class instructor.

    ; Child Support Payments. You will need to determine the amount of child support due based upon the Confidential Financial Affidavits you and the

    defendant completed (or by the Affidavit of Imputed Income if the defendant did

    not complete his/her own Confidential Financial Affidavit). You may use the

    Child Support Computation Form as a guide to help you calculate the support

    due. Another option is to go online to:

     www.alllaw.com/calculators/childsupport/wyoming/ to calculate child support.

     You CANNOT agree that no support will be paid. The statutes allow

    for a reduced amount of support when you agree on shared physical

    custody and each parent keeps the child(ren) overnight for more than forty

    percent (40%) of the year and both parents contribute substantially to the

    expenses of the children in addition to the payment of child support.

     Where the combined net monthly income of both parents is less than eight

    hundred and thirty three dollars ($833.00), the non-custodial parent has to

    pay twenty-five percent (25%) of his/her net income, but the minimum

    amount of child support a person has to pay cannot be less than fifty

    dollars ($50.00) per month for each family unit in which there are children

    to whom the noncustodial parent owes a duty of support.

     There are NO DEVIATIONS from the presumed support allowed

    UNLESS the Court CHOOSES to deviate from the set amount because the

    amount was unjust or inappropriate in the particular case. The Court must

    include the specific reasons for deviation in the Decree of Divorce.

     NO AGREEMENTS FOR LESS THAN THE PRESUMED

    SUPPORT CAN BE APPROVED IF GOVERNMENT OR STATE

    BENEFITS (SUCH AS MEDICAID (TITLE 19), FOOD STAMPS,

    POWER, ETC.) ARE BEING PROVIDED ON BEHALF OF ANY

    CHILD. This means the Court cannot lower the amount of child support

    calculated by using the net income of you and the defendant even if you

    and the defendant agree to a lower amount of support.

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    ; Medical Support. The law requires that medical support for the child(ren) be

    included as part of any child support order. The Court shall order either or both

    of the parents to provide medical support, if insurance can be obtained through an

    employer or other group carrier, or if it is otherwise reasonably available. This

    may include dental, optical or other health care needs for the child(ren). In

    addition, the Court will order that any medical expenses not covered by insurance

    and any deductible amount on the required insurance coverage be paid by one or

    both parents. If both parents are ordered to pay for expenses not covered by

    insurance, the Court will specify the proportion for which each parent is

    responsible (for example, 50 % to plaintiff and 50 % to defendant).

    E. Fill out an Order for Income Withholding. The Court is required by statute to

    enter an Order for Income Withholding in every case where child support has been ordered.

    F. Fill out an Income Withholding for Support. This form is required if you need to

    have the child support paid directly from a non-custodial parent’s employer. If you need

    assistance in filling out this form, or if you need assistance in collecting child support, you should contact the child support enforcement agency in your district. The Clerk can provide you with the agency’s contact information.

    G. Other Forms: The Court may also require a Certificate of Mailing and a

    Supplemental Order depending on the county where your case is filed. Ask the Clerk if these additional forms are required.

    H. Copies and Envelopes. Take an original and two (2) copies of each of the above documents for filing with the Clerk and two (2) addressed, stamped envelopes (one addressed to you and one to the defendant with enough postage to cover the cost of mailing the Decree of

    Divorce to you and the defendant). A copy of any documents that you file (other than the Decree of Divorce) must be sent to the defendant on the date that you filled out on the Certificate

    of Service on each document.

     If a hearing is not required by your Court, the Clerk will mail a copy of your

    Decree of Divorce if accepted by the Court.

     If a hearing is required by your Court, follow the next steps:

    I. Hearing. In some Courts, a hearing is required before the Judge will sign the Decree of Divorce. If this is the case, you will need to request a hearing by completing the

    Request for Setting. If you have reached an agreement, check the box that states that the parties have reached an agreement. Indicate how much time you will need for the hearing (usually 15 minutes if there is an agreement). You will file the Order Setting Hearing with the Clerk’s

    office and they will fill in the hearing date and time and mail a copy to you and the defendant. You will need to provide an addressed, stamped envelope for you and the defendant to the Clerk. These documents are additional forms that are contained in your packet.

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