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What happens if my Divorce case goes to Court?
October 2, 2020
What happens if my case goes to court?
When one party asks for divorce, the customary thing to do is to retain counsel and that attorney contacts the other party and asks them to retain counsel to negotiate a settlement. If you cannot afford an attorney, then it is advisable to at least consult with one before trying to secure your divorce on your own.
Often this can result in an amicable process where the attorneys negotiate a settlement. However, this is not always the case and sometimes you have to go to court. Most of the time you must go to court if there are substantial differences in the positions of the parties. For instance, if the parties have different ideas about how to parent their children, the court is the only one who can decide those differences.
Besides settling your case out of court, a divorce trial is the only way that court can decide your case.
Going to court does not necessarily mean you are going to trial. Once one of the attorneys files the request for intervention in your New York divorce case, the judge will set down a preliminary conference￼￼￼ date so that the parties and attorneys can meet with the judge and map out the way the case will proceed in court. In New York, the guidelines set forth by the administration expect that your case will be handled within a nine-month period. However, that is sometimes impossible, and your case may stretch on even longer than that.
After the preliminary conference, the court and attorneys will sign a preliminary conference order which also requires the signature of the parties. This preliminary conference order will dictate how the case will proceed forward. This preliminary conference stipulation and order will deal with such issues as child custody, child support, spousal support, and equitable distribution discovery. The preliminary conference order in New York will also advise the parties as to the availability of mediation services and will address other concerns that the attorneys might have as to deadlines and expert appointments that might be necessary for resolution of your case.
If there are custody issues involved, the preliminary conference order will set forth in writing and will indicate whether it is anticipated that an attorney for the child will be appointed to represent the children, or whether a forensic evaluation of the parties must be had. The PC order will also try to have the parties agree to a parenting scheduling agreement pending final resolution of the case.
The preliminary conference order will also indicate what issues are resolved and what issues are not resolved.
If there are financial issues at stake such as equitable distribution or support, the law requires, and the court will allow the parties to exchange formal demands for financial information.
As to these demands, a strict schedule is put into place for the timing of the exchange of demands and responses to demands. Documents will have to be exchanged and no one is exempt from these demands. However, and experience New York divorce attorney will be able to guide you through and help you formulate your responses to any sort of demand that the other attorney might serve. These demands come in the form of notices of discovery and inspection, interrogatories, and depositions. Sometimes demands may also be phrased in request to admit or deny.
All these formal legal instruments and papers are designed to procure information from you to share with your spouse so that both parties have full knowledge of the financial status of the other party.
Once these documents are exchanged, the court will hold status conferences from month to month to try to assist the parties in settling their matter. If after several of these court appearances the parties cannot come to terms with their issues of support equitable distribution in custody, the court will set the matter down for a trial. In my experience, most cases do not go to trial but you still nevertheless need to be ready for one in the event that one of the parties is not willing to negotiate a fair financial settlement or is not living up to their financial or custodial agreements, or if one of the parties is not amenable to any resolution of all of the issues.
If the case cannot be resolved after some time, your attorney will file what is called a note of issue and certificate of readiness for trial. Shortly thereafter, the judge will set the matter down for a divorce trial.
In a New York divorce trial, you do not have a jury unless you are trying grounds for divorce. The courts discourage the parties from having trials on grounds. Most of the time, the courts will encourage the parties to proceed with their divorce on the grounds of your retrievable breakdown of the marriage.
The issues to be determined in a divorce trial in New York State are primarily grounds, child custody, child support, possession of the marital residence, and equitable distribution of assets and debts. The trial court will also decide how to divide up retirement accounts and pension plans. The court will also decide what interest you may or may not have in any business the parties may have started during the marriage and in any pension or retirement plan regardless of whether some or all of the plan’s value was earned before or during the marriage. For instance, even if you earned a part of your retirement before the marriage, your spouse may still be entitled to an equitable share of that part of the retirement earned during the marriage.
Whether or not you will go to trial depends on several factors. However, if it turns out that you were going to trial, you want to be prepared by an attorney who is experienced in trying cases. That means in New York you want an experienced professional divorce lawyer who has experience in trying cases so that they might assist you in preparing and putting on your case in an effective manner.
In my experience, preparation is the most important part of a trial. At a trial, a court will swear in the parties to tell the truth and each party will be able to present evidence, testify and call witnesses in support of their positions. Normally, certain pieces of evidence are stipulated into evidence such as the parties’ statement of net worth and tax returns. More complex matrimonial trials, however, may require the parties to retain experts to compile detailed reports and to testify to certain complicated financial matters pertaining to businesses that ran or were opened during the marriage.
In most instances, to avoid duplicitous testimony, the court will appoint a forensic expert to evaluate the martial business. It does not matter if the business is in your spouse’s name, such that you still may have an equitable interest in it, depending on your direct and indirect contributions. That is why it is important to evaluate the business. This forensic accountant will render a report to the court and that often helps to settle a case. But if the report does not settle the case then it is up to your attorney to call that expert as a witness to testify in court. Without a stipulation from the other side, the expert report will not come into evidence unless the expert is in the court room and takes the stand to authenticate the report and to render an expert opinion. if one of the parties does not agree with the conclusions of the expert’s opinion, they will have a chance to cross examine the expert. There are also times where it might be good to retain your own expert to rebut the findings of the independent expert. This is a matter of judicial discretion.
Once the evidence is in and you have called all your witnesses the trial will come to a close and the court will render a decision. In my experience, and in cases that do not involve children, the Court will appoint a referee to hear the case and report back to the court its findings. In that instance, the court will write a written decision based on those findings. However, the court also allows the parties to stipulate to a hear and determine order which means that the referee can not only hear the case but also make the final decision. And a final decision means just that once the decision is made it is reduced to a final order which is called a divorce judgment. If you do not like the divorce judgment and you have only 30 days from service of the Judgment on Notice of Entry to appeal. You would appeal to the appellate division and you would follow the appellate court rules that appertain to that appellate department that oversees your county court decisions. The rules of the appellate division are extremely strict, and compliance is mandatory. That is, for example, if you do not file your notice of appeal within 30 days and if you do not perfect your appeal in the manner prescribed by the court rules your case will likely not be heard by the Appellate division.
Nome of the above is attorney advise and is provided for informational purposes only. I hope this has given you insight as to what to expect if your case is headed toward trial.
By: Lisa Beth Older
Your New York City Divorce Lawyer