We begin work on your case when we are retained. If the decision is made to commence a lawsuit, we draft papers and submit them to you for approval before filing them with the appropriate court.
After service of the Complaint on your spouse, the law provides a specified period for your spouse to answer your Complaint. The court or an agreement between attorneys may extend this period.
Often immediate relief is necessary upon the filing of a divorce lawsuit. This relief may include requests for restraining orders, temporary support, control of assets, custody and parenting time orders, the right to exclusive possession of a home, and/or attorney’s fees. In such cases, we may file a motion for temporary relief concurrently with or shortly after the filing of the initial Complaint. Any court orders that result, sometimes called “pendente lite,” Latin for “during litigation,” are temporary. They remain in effect until modified by agreement, or hearing, or until the case is finalized.
The need for temporary support is one of the most common reasons for a court hearing. At the temporary support hearing, the dependent spouse presents evidence of his or her needs, obligations, and expenses. The spouse from whom support is sought will, in like manner, present proof of his or her expenses and income. It is thus crucial for us to prove facts about the parties’ incomes at this early stage. Therefore, provide us with any written evidence about these matters. Preserve and deliver to us such things as pay stubs and tax returns so we may have as complete a financial picture as possible.
Sometimes we must have the court decide who will exclusively possess which bedroom, who will remain in the family residence during the pendency of the divorce if abuse exists, who will have control of certain assets (like a car), and who will be responsible for certain debts.
The next stage of the case involves “discovery.” During this stage, both sides try to collect all the information necessary for settlement discussions and/or trial. Discovery refers to the ability of both parties to get information, primarily financial, from the other side. Discovery may include such devices as written questions called interrogatories, depositions, and requests for documents. Usually, written discovery comes first, and then depositions may occur if additional information is necessary. Depositions involve the taking of sworn oral testimony from you, your spouse, and/or third parties at one of the attorneys’ offices. Usually, both clients, both attorneys, and a court reporter are present. This process describes formal discovery.
In some circumstances, more informal discovery can be used. The exchange of sworn Asset and Liability Statements and sworn Income and Expense Statements give a brief snapshot of information at a given point in time. Unless you know all there is to know about your financial circumstances, this type of discovery is not recommended. If informal discovery is chosen, then you will be asked to sign waivers of liability for your attorney.
In most family law cases, both parties will be required to participate in “discovery” proceedings. Both sides must have all of the information and documentation necessary to prepare for trial and to form the basis for meaningful settlement discussions. The actual discovery procedures may be as informal as a telephone request by us to you to produce any checking account records you have in your possession at our offices at a particular time or as formal as a multiple-page list of questions that you must answer under oath (see “Interrogatories” below).
It is always preferable to approach these matters in a spirit of cooperation with opposing counsel. We find that this sort of cooperation reduces the time required for the discovery phase of your case. In many instances, it also substantially reduces the cost to you of that phase. Some discovery methods are as follows:
Requests for Admissions: These require you and/or your opposing party to admit or deny specific written statements. These require immediate attention because under the law if a response is not received within thirty days, the statements are deemed admitted, and the fact issue resolved accordingly.
Interrogatories: These are detailed written questions that must be answered (under oath) to the best of your ability. These must be answered within 30 or 45 days, depending on when they are received. Failure to respond properly within the time required may subject you to possible sanctions and penalties.
Depositions: In its simplest form, a discovery deposition is the oral testimony of a witness taken under oath before trial. The basic rule is that the questions asked must address themselves only to information that is relevant to the case or to discovering further relevant facts. Depositions are expensive due to lawyers’ time, court reporters’ time, and the cost of the transcript.
Request for Production of Documents: This procedure is a written request to the opposing party to produce a specific list of documents at a particular date and time.
Request for Vocational Evaluation: This procedure permits a trained vocational evaluator to evaluate the earning potential of a person through interviews and tests. The purpose is to find out what career choices would be appropriate and what training is necessary to achieve those career goals. The evaluator also will report on the job market by explaining what job possibilities are available and what the potential earnings are. This type of discovery can be helpful in evaluating a party’s need for alimony.
Requests for Physical and/or Mental Examination: Occasionally, there is such a request, usually in a custody case, if a party has put his or her mental or physical condition at issue. Generally, a party may not request a mental examination, for example, just because he or she thinks the other party is “crazy.” However, in custody cases or where the effect of mental or physical problems on the ability to work is at issue, this procedure is appropriate.
Records Deposition: This procedure is a direction to third parties (usually a party’s financial institution) to produce documents, such as credit card statements, brokerage statements, and other documentation.
Business Valuations: We obtain evaluations of the value of a business or practice as an asset of the marriage. To determine the market value of the business or the practice, it will be necessary to retain an expert.
Pension Valuation: The pension, profit sharing, Keogh, annuity, or 401(k) plan is an important and, often, very valuable asset of the marriage. To value a defined benefit plan usually requires an actuary. Documentation such as annual benefits statements, plan descriptions, and plan booklets as well as annual salary statements is necessary for the expert to review. Defined contribution plans (IRAs, Keogh, etc.,) require copies of the statements.
Please note that our approach to matrimonial litigation will always be to act so as not to make a bad situation worse. We will try to defuse tensions, avoid hostility, and maximize the ability of the parties and lawyers to arrive at a fair and reasonable settlement. Many studies and our own experience show that a negotiated agreement between the parties serves both parties best. An agreement allows the parties to “fine tune” matters between themselves in a way that courts are often unable to do. The court will never know a case as well as the parties, and the attorneys do. Therefore, it is always prudent to work out a settlement if possible.
However, there are times when a case does not settle despite the best efforts of the attorneys and clients. In our experience, this is a small percentage of the time. Settlement may be impossible to achieve for several reasons, including the unrealistic expectations of the parties, disputes as to the facts or the law, the existence of novel and as yet undecided issues, or the desire on the part of a party to deny a divorce to the spouse. In those instances where a trial is necessary, we are well qualified to represent you. Our ability to try cases when needed, allows us to negotiate from a position of strength.
Usually, there is understandably less legal expense involved in negotiating a settlement than in trying a case in court. There will be no settlement without your consultation and approval. We will keep you advised about the progress of your case.
If it does not appear that your case will settle or if your attorney feels that settlement negotiations may proceed better against the backdrop of a trial date, a trial date is requested upon or near the completion of all discovery.
Settlement sometimes occurs just before trial, “on the courthouse steps.” The attorney then recites the agreement on the record (before a judge and court reporter).
Though both parties may desire a divorce or some other outcome, if an agreement is not reached on all issues, the matter is contested, and a trial is necessary. Preparing for trial is an intense, time-consuming, and, therefore, expensive process. Testimony requires preparation. All evidentiary documents are copied and cataloged. If there will be testimony, your attorney will meet with the experts to prepare for cross-examination of the other side. Research and briefs may be necessary. At the trial, witnesses and records substantiate positions of the parties as to support, custody, property, or other issues.
Your deposition may be taken during the pendency of the divorce action. You should understand that a deposition is an important procedure, and you and your attorney must prepare for it. These instructions will help you understand what is going to occur at the deposition and how to act.
What is a Deposition? A deposition is your oral testimony under oath. Depositions can be taken of the parties and experts in addition to witnesses. Opposing counsel will ask you questions. Usually, an official court reporter records the proceedings and all questions and answers. The judge will not be present. Usually, the deposition is taken in one of the attorneys’ offices. There is little difference between the testimony at a deposition and the testimony given at trial. In a deposition, a judge does not preside. The judge will do so at trial.
The Purpose of a Deposition: The opposing side is taking your deposition for three main reasons:
These are very legitimate purposes and the opposing side has every right to take your deposition. Correspondingly, you have the same right to take depositions of the opposing party and all witnesses.
Going to court is bound to raise your anxiety a bit. If you know what is going to happen and how to act, it will help diminish your nervousness. You should dress comfortably, conservatively, and in a manner that shows respect for the court. If you are uncertain what is appropriate, ask your attorney. The personnel in the courtroom will usually include a judge, a court reporter, and court clerks. In a contested trial, your spouse, his or her attorney, experts, and other witnesses will be present. If there is more than one case listed, you may have to wait a while for your case to be called. Being in court can be tedious.
When your case is called for trial, the general procedure will be as follows: