Some cases cannot be resolved in a non-contested way. This could be due to a lack of trust or an unwillingness to reach a compromise. In a contested case, we gather information through discovery, negotiate with opposing counsel, advise about possible settlement, and if necessary, prepare for a trial in which a judge will decide all contested matters.

Click here for a general roadmap of the contested divorce or legal separation process.

A contested divorce starts with an initial consultation – either by phone, Zoom or in person. Here, we will learn about your situation, explain the process, and provide our initial advice on next steps. After that call/meeting, we will send our representation agreement that outlines the scope of our work and costs involved.

Three documents will be filed with the court to start your case - a Petition for Dissolution, Statement of Property and Statement of Income & Expenses. After these are filed, the court will issue a “summons.” This is the document that will be delivered to the other party to inform him or her of the commencement of the case. You may have heard of this as “being served.” The person being served will then have a set amount of time to respond to the summons. Generally, he or she will file a response to the Petition along with his or her own Petition (known as a “counter-petition”).

Assuming both sides have information sufficient to evaluate settlement options, it is often around this time that settlement proposals are discussed. In other cases, more information must be gathered (see “discovery” below).

When parties reach an agreement, settlement documents will be prepared. After everyone signs the settlement documents, the agreement will be submitted to the judge for review. If the Judge approves the settlement, the process will conclude.

In other cases, the parties are unable to reach an agreement at this stage. To help move the case forward, the court will require a Settlement Conference where the attorneys (and sometimes the parties) will meet with the judge to discuss any outstanding issues with the hope of reaching a resolution.

Throughout your case, the attorneys will be working to gather information (a process called “discovery”) to help them analyze settlement options, and if necessary, to prepare the case for trial. This can be done informally (i.e. through phone calls to opposing counsel to request account statements) or it can be more formal. Formal discovery consists of a number of tools attorneys can use to obtain relevant information, such as:

• Interrogatories: These are written questions that must be answered, under oath. The questions can be in regard to any matter relevant in the case. For example, an interrogatory can ask a party to list all sources of income, or to provide a detailed work history.

• Production of Documents: This is where one side sends to the other side, a written request for relevant documents.

• Depositions: This is where the attorney asks questions of a person (either a witness or another party in the case). The witness provides his or her answers under oath. A court reporter makes a transcript of the questions and answers. Often depositions take place in an attorney’s office with the parties, attorneys and the court reporter present. The information obtained in a deposition can then be used to conduct further discovery and as evidence at trial.

• Subpoenas for Documents: This is where formal requests are made for relevant documents, such as bank, retirement or employment records.
  

Depending on the judge, if a case is not settled at the first settlement conference, the case may be set for additional conferences to give the parties a chance to work out unresolved issues. Keep in mind, the ultimate goal of the court process is to help parties reach a resolution. If the parties are unable to reach a resolution on their own after a number of settlement conferences, the judge will set the case for trial.

A trial is a meeting of the parties, the attorneys and the judge where information is presented and the judge makes a decision regarding all matters in the case. The information is presented through witnesses who answer questions posed by the attorneys (and sometimes, the judge). Both parties will generally testify (answer questions under oath). Other witnesses with relevant information may also be required to testify. These witnesses could include other family members, childcare providers, vocational experts, business valuation experts, CPAs and child psychologists, just to name a few.

After the evidence is presented to the court, the judge will issue a judgment deciding the issues in the case. The judgment will likely describe how property is to be divided, how the parties will share parenting time, whether maintenance and/or child support will be paid and how the attorney fees will be paid. The timing of the judgment is up to the judge. In some situations it can take many months following the trial before a judgment is entered.

After the judgment has been entered, the process will continue until all post-trial matters are complete.

We want our clients to talk with us without worrying about the cost. As an exclusive benefit to our current clients, a certain number calls (as described in the Representation Agreement) scheduled through Direct Connect are free of charge.

A settlement conference is a meeting between the judge and the attorneys. Settlement conferences are required per local court rule and if one is not conducted, the case may be dismissed. This meeting generally takes place via video conference, or in the judge’s chambers, in private, and without the parties. In some rare cases the judge will conduct a settlement conference in the courtroom.

During this meeting, the parties will sit separately, either in the courtroom or in the hallway outside of the courtroom. Parties are generally not required to talk to each other unless they wish to. Except in rare cases, neither party will meet the judge at this conference.

At a settlement conference, the attorneys update the judge on the status of settlement discussions and ask for feedback on outstanding issues. Most judges will give some feedback with the intention of helping the parties work towards settlement.

A settlement conference is different from a trial or a hearing in that the judge will not be making any decisions or entering any orders regarding a case at that time unless the parties can agree. When a party wishes for the judge to make a decision on an outstanding issue, a formal written request must generally be made and a hearing must be set on a different docket than that of the settlement conference, per local rules of the court.

Generally, unless an emergency situation arises, these formal requests would not be placed on a docket for a hearing until a settlement conference has occurred. The next steps following the conference will depend on the outcome of the discussions at the settlement conference. These steps may include additional formal discovery (i.e. information gathering) and continued settlement negotiations.

Litigation can be stressful and heated. Communication that was once routine may now prove difficult. Yelling at your spouse when the kids come back a few minutes late (or minus some clothes you sent in the diaper bag), may offer temporary satisfaction, but before you do that, you may want to consider a few things…

First, while your intimate relationship is ending, your relationship as parents will continue for years to come. In addition to the big events – graduations, ball games and recitals, the day-to-day parenting duties will remain. You and your soon-to-be ex will need to work together to be sure teeth get brushed and homework gets finished in both homes. It’s better for your kids to see a positive relationship even under negative circumstances.

Second, you should also be aware your communications could become part of the court process. The judge may review communications (or lack thereof) and take that into account in deciding parenting time and decision making authority.

Finally, we all know that litigation can be expensive. Heightened conflict requires more attorney involvement.

Communication during litigation should be brief, businesslike and deliberate – do not be reactive. When you are angry, you may want to consider waiting a day to respond. You may even want to contact your attorney. Never assume your communications are private. And remember, civil communication goes a long way towards keeping costs down.

Be aware every situation is unique. This post should not be considered legal advice. If you have questions about your individual situation, please contact an attorney.

• Be Organized & Responsive: Provide requested documents to your attorney in an organized and timely way. By doing so, your attorney will be able to more efficiently draft documents and schedule necessary court dates.

• Streamline Your Communications: When you ask a question, a good lawyer will provide a thorough and prompt response. Remember that lawyers charge for their time (including time answering questions via phone and email). Consider these alternatives:

  • Write down minor questions and then set a phone meeting to discuss them at one time.

  • Condense your questions into one email. These options may cut down on a costly back-and-forth. Of course, if your question is time-sensitive or involves a matter of great importance, be sure to contact your attorney right away.

  • Schedule a Direct Connect call.

In addition to reducing the cost of your case, these tips may help you more quickly reach a reasonable resolution.