DIVORCE - WHAT TO EXPECT AND WHEN Part III THE CONTESTED DIVORCE
If your spouse files an Answer to your Complaint(see, Part II), your divorce request is considered Contested and your case will be scheduled for Trial approximately 8-12 months from the date the Answer is filed. There will be a Status Call and Pre-trial Hearing before the Trial, at which time the Court will attempt to see what matters must be tried and what can be agreed upon. There are also a number of required pre-trial procedures that your attorney has to comply with. These procedures add a substantial amount of required preparation for trial, which increases the cost to you if we have not reached a settlement within 45 days from the date of your Trial.
WHAT HAPPENS BETWEEN THE FILING OF THE COMPLAINT AND THE TRIAL:
If your spouse is cooperative:
(1) Allocation of parental rights (custody) and support and other matters agreed upon without the need for a Temporary Hearing.
(2) Mutual discovery and exchange of information between attorneys.
If your spouse is uncooperative:
(1) A Temporary Hearing to determine parental rights, support etc.
(2) Required discovery (may be sought at any time) and includes:
(a) Interrogatories (written questions answered under oath): Are sent to spouse through his/her attorney. Spouse has twenty-eight days in which to answer.
(b) Depositions: Your spouse must answer questions in person in front of a Court Reporter.
(c) Motion for Production of Documents: A request to spouse to see documents (wage and business records, etc.)
(d) Motion for Physical or Psychological Examination: a request that one of the parties and/or child/ren submit to an examination; generally, the requesting party will have to pay for the examination. (Very expensive, but often very necessary).
(e) Evaluation and Appraisals of pensions, businesses, real estate, automobiles, and those items of value not readily ascertainable. (The usual cost of a real estate appraisal runs from $200.00 to $300.00 and sometimes may be shared between the parties. The initial cost of the evaluation of a pension is approximately $95.00 to $150.00, and this cost must be paid entirely by the party requesting the evaluation. Other appraisals and evaluations may be necessary, depending upon whether or not there are unusual items such as businesses, guns, jewelry, or collectibles which must be valued.)
Status Call: Approximately 4-6 months after your Complaint is filed, the Court will set this matter down for a Status Call. It is expected that by that time, all of the discovery in your case will have been completed so that the case can be discussed with a view toward settlement. The Court will make whatever Orders are necessary to see that any discovery which has not been completed is finished, and will set the matter up for a Pretrial Hearing, if necessary. Since the Status Call is set so close to the filing date, it is necessary to do a lot of work in the beginning of your divorce in order to complete the financial picture for presentation to the Court at the time of the Status Call. You need not be present at the Status Hearing.
Pre-trial: At the Pretrial Hearing, the Court attempts to narrow down the issues before Trial and obtain stipulations (agreements between the parties) as to the nature and value of all assets and as to whether or not the issue of the allocation of parental rights is contested. At the Pretrial Hearing, a Trial date is set. You must be present at the Pretrial.
Note: Everything you and your lawyer can do to the other side, they can do to you!!
If an agreement cannot be reached, all contested cases will be tried before a Judge or a Magistrate. A Trial can take from one-half of a day to several days, depending on the complexity of the issues to be tried. As you can see, a Trial is very expensive and every effort should be made to reach an agreement before the Trial. Preparation for Trial will require you and your witnesses to meet with your attorney or one of the support staff approximately two to four weeks prior to the Trial. When you receive notification of your Trial date, call this office no later than 60 days before the Trial date to set up your initial Trial preparation conference.
A Trial deposit will be required 45 days prior to the Trial, which will cover fees (on an hourly basis) of what we calculate to be the time required for preparation and appearance at the Trial. You will also have to post a cost deposit to cover the expenses of any expert witnesses who may be required to testify on your behalf. All current fees must be paid in full, and the Trial retainer received at least 45 days prior to the date of the Trial, unless other arrangements have been made in advance. Minimum retainers are on the order of $1,500.00, but if there are contested custody, spousal support, or valuation issues, trial retainers of $2,500.00 to $10,000.00 are not uncommon.
After the Trial, the Magistrate or Judge will issue their Decision. There are various legal remedies available if you are dissatisfied with the Court's decision (including the appeal process).
Note: Most of these legal procedures must be taken within specified time periods after the Court makes its decision. If you are dissatisfied with the Court's decision, please discuss this option with us.
Always dress appropriately for Court appearances: neatly dressed and groomed (blouse and skirt or dress for a woman; no jeans for anyone).