Effective Representation for Clients Facing Contested Divorce
In some situations, divorcing couples are unable to resolve matters through negotiation. Indeed, in some cases, negotiation may not be appropriate from the very start, when there is a deep and abiding disagreement between spouses. Such matters must be litigated, meaning they must be taken before the appropriate court of law, where a judge can make decisions.
What Happens First in the Divorce Litigation Process?
There are several steps to the litigation process; each one is completed in its own timeframe, which requires an element of patience and staying focused on a desired outcome. Most litigated divorces begin with the filing of a summons and supporting documents that are then served on the other spouse. Then, the parties will receive a date where everyone must come to court for what is known as a Preliminary Conference.
Prior to a Preliminary Conference, the parties should exchange Statements of Net Worth, sworn documents that detail the expenses, assets, and debts of each spouse. At the Preliminary Conference, the court will set down dates by which certain actions need to be completed, such as the exchange of tax returns and bank statements. This is the litigation road map. The spouses’ attorneys will inform the court of the contested issues in the case. In general, a Preliminary Conference is an opportunity to air some disputes before a judge or court attorney, and to put the litigation on a path that keeps it moving forward, with deadlines that need to be met. The primary function of a “PC” (in attorney parlance) is organizational.
In many divorces, the next step taken is the filing of a “motion” asking the court to make determinations as to certain core issues until your divorce becomes final – what is known as a request for “pendente lite” relief, meaning relief while a divorce is pending. These issues can be negotiated and agreed to by spouses, of course, but when such negotiations prove fruitless, a motion – a formal request of a court to issue an order – is the way to proceed.
The most common reasons spouses make pendente lite motions are:
- Payment of any temporary spousal maintenance or child support
- Occupancy of the marital residence
- Responsibility for payment of marital debt
- Establishing interim child custody and visitation
- Payment of counsel fees
The spouse opposing the request for relief will have a chance to answer the motion and bring their own motion for different relief if they so choose. In some cases, many motions will be made throughout the divorce litigation, involving financial and custodial issues and litigation-specific issues like discovery. Motion practice can consume a lot of energy and extend the time it takes to finalize a divorce, but often it is necessary if a spouse is being unreasonable or obstreperous.
What Is Discovery?
Discovery is the exchange, usually after formal written demands, of financial records of all types. Discovery also usually includes depositions, which are oral examinations under oath of each party, and sometimes of third-party witnesses.
In heavily litigated cases, discovery can be lengthy. In cases where one spouse appears to be hiding income or assets, discovery can also function as a “investigative” process, where a party can deeply probe the finances of the other party. While discovery in divorces can feel invasive, it is often critical for ensuring that you receive what you are entitled to receive, or to protect what is rightfully yours.
Common forms of discovery that you can expect to engage in include:
- Depositions. These are oral examinations under oath of each party and sometimes of third-party witnesses.
- Interrogatories. These are written questions designed to garner information related to financials, witnesses, business and personal activities during the marriage, and other information tailored to the allegations related to your divorce.
- Demands for Production. These are requests for documentation, much of which support answers to the interrogatories.
- Notices to Admit. These are written statements that can be admitted or denied as factual.
How Involved Will I Need to Be in My Case?
Your divorce attorneys are your front line when it comes to protecting your best interests during your case, but they cannot do it without you. The litigation process necessarily involves the client working with the attorney in various ways. Depending upon the issues involved in your specific case, some of what may be required of you will include:
- Gathering documentation related to matters of finance, health, children, employment, education, witnesses, and more.
- Being prepared for and attend depositions.
- Responding to discovery requests, which will also include securing other specifically requested documentation.
- Participating in forensic evaluations in contested custody matters.
- Preparing for your potential testimony.
- Attending hearings and your trial.
What Is Evaluated During Divorce Litigation?
Where there are real properties, businesses, pensions, professional practices or other tangible or intangible assets that are considered relevant to the marriage, professional evaluators are often retained, at the parties' expense, to do the necessary appraisals or valuations. In the case of contested custody matters, forensic psychological experts may be retained, also at the parties' expense, to evaluate the family situation with an eye to a court decision on custody, visitation, and other parental matters. In contested custody cases, an attorney may also be appointed to represent the interests of the children in the divorce action.
New York is an equitable distribution state, which means the financial split may not be equal, but it will be fair. To accomplish a proper division of assets, every detail of an asset must be assessed from financial records and future anticipated value to cost of upkeep and physical contents. The distribution of marital assets is a primary point of contention in many divorces, and involves much legal nuance – your divorce attorney will be key in advocating for a distribution that best suits your financial needs and is based on relevant circumstances.
How Are Support and Parenting Access Schedules Handled in NYC?
At the beginning of litigation there are usually issues relating to the support of one spouse and/or children during the lawsuit. Expenses like insurance, medical care, childcare, school expenses, and the like also must be addressed. In addition, parenting time with children during the divorce litigation must be arranged.
Oftentimes, these issues can be negotiated – indeed, many divorce lawyers can tell you about times they came to a resolution minutes before the judge handed down their decision. But many times, agreement is simply not possible. In these cases, issues of support and parenting time will be resolved by decisions issued by a judge.
What Conflicts Could Trigger a Hearing?
Many types of motions for interim relief can be decided by a judge based solely on the papers filed by the parties. However, some issues will require a formal hearing, where both parties testify and evidence is presented formally.
Many of the conflicts that can result in a hearing include:
- A determination of interim child custody
- Refusal to pay court ordered child support or spousal maintenance
- Denying a parent his or her visitation rights
- Exposing the children to substance abuse or other detrimental behavior
What Should I Expect at a New York City Divorce Trial?
Once discovery and evaluations are completed, if the case is not settled, it is set down for trial. A trial is different from a hearing – it is longer, and will address post-divorce issues, not issues relating to what happens while a divorce is ongoing.
Trial may take place before the judge assigned to the case or before a Special Referee to whom all or some of the contested financial issues may be assigned. Depending on the complexity of the issues, trial can take days, weeks, or even months to complete. After trial, many judges require post-trial briefs by the parties' attorneys in which they argue why the facts proven at trial should lead to a decision in favor of their respective clients. An appeal to the Appellate Division and, in rare cases, a further appeal to the state's highest court, the court of appeals, is also available.
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In litigation, the skill, experience, and effectiveness of the attorneys are of paramount importance. The attorneys representing you should possess the ability to clearly educate clients on the strengths and weaknesses of their case, and how the legal process will play out. They should have a thorough knowledge of the law and of procedure and evidence. They should have facility with numbers and the ability to unravel complex financial issues. And they should be able to present your case authoritatively and convincingly to the court. The attorneys at Berkman Bottger Newman & Schein LLP possess all these skills and are experienced, effective advocates. Our many years of practice in this field, and the individual talents of our attorneys, have brought our firm and team of attorneys the respect of both the judiciary and professional peers. Call (212) 466-6015 or fill out our contact form today. Proudly serving Manhattan, Westchester, and Bergen County, New Jersey.