If you find yourself in the position of having to endure a contested divorce or custody case, there is a general (but not always consistent) process that will take place.
The purpose of this article is to discuss the general guideposts of a litigated divorce, custody or modification case, and generally what to expect during these cases.
Filing and Service of the Pleadings
To commence a contested action, the Plaintiff (the party starting the action), must file and serve a Summons and Complaint detailing the relief he or she is requesting of the Court.
The case does not start until the Summons and Complaint are properly served on the opposing party.
Upon service, the opposing party then has 30 days from the date of service to file and serve his or her responsive pleading. This will generally be in the form of an Answer and Counterclaim that admits or denies the allegations in the Complaint and has its own requested relief.
Temporary Hearings
Generally, a Motion for Temporary Relief is filed with the Summons and Complaint which is a formal request for the Court to schedule a hearing on important temporary matters that need to be heard.
Important temporary matters may include immediate custody and visitation issues concerning your children, child support, spousal support, immediate other financial needs of a party, restraining orders, attorney fees and costs and other needs.
These hearings are normally scheduled by the Court within 30-45 days of the filing of the Motion (which is County dependent based upon their docket). The Motion and the hearing notice are usually served with the Summons and Complaint upon the opposing party. If there are emergent circumstances, the Court must grant an expedited or emergency hearing for a temporary hearing to take place within 5-14 days of the request for a hearing.
These hearings are solely based upon Affidavits of the parties or any witnesses, expert affidavits (if applicable,) evidence such as documents, bank records, pictures, and the Financial Declarations of the parties. There is usually no live testimony at these hearings. The Court will review the submissions by each party, listen to arguments of counsel (some Judges do not hear argument and simply read the packets,) and issue a ruling from the hearing. That ruling is converted to an Order that both parties must operate under until further Order by the Court.
Discovery
After the temporary hearing, the discovery process commences. This is generally the exchange of documents and answers to questions to and from the opposing party. During the discovery phase, subpoenas for documents can also be issued seeking evidence to support the case.
Discovery can take place up and until the time of a scheduled trial.
Part of the discovery process is a deposition. A deposition is the sworn taking of testimony of a party or a witness to the case. Each party normally receives one opportunity to depose a party or witness. The deposition is key to locking in a party’s story, assisting in additional fact finding for the case, and impeaching the party or witness if the case goes to trial.
Mediation
The Mediation process is a requirement when any contested action is filed. In fact, no final hearing can be scheduled without the mediation requirement being met.
Mediation is an effective tool to resolving most cases so that they never see the light of day at a trial. A third party neutral, usually a retired Judge or lawyer who practices in the field, are agreed upon or appointed by the Court to conduct the mediation. The parties remain in separate rooms with their respective counsel while the mediator attempts to resolve the differences between the parties.
If the parties reach a meeting of the minds at mediation, a written agreement can be prepared and executed at the time of mediation. From there, a hearing is scheduled to approve the written agreement resolving the case in finality.
If mediation is not successful, an impasse will be called by the mediator and the case must be prepared for trial.
Trial
Unlike the Temporary Hearing, a trial requires live testimony of the parties and any witnesses. This occurs before a Judge along with a court reporter who must take all testimony down to create a record. The parties and their counsel are also present.
The Rules of Evidence apply, and the case must be culled down to certain and important exhibits, witnesses, and trial testimony that are most beneficial to the case.
Once the trial has concluded, the Court will rule based upon its application of the law to the evidence presented. This ruling then becomes a final Order which will be the final judgment of your case.
Appeal
A Final Order is always appealable unless an Agreement between the parties has been reached and approved by the Court. If there is a misapplication of the facts and law, this may create a ground for appeal.
