In some situations, divorcing couples are unable to resolve matters through mediation or collaborative law or through negotiations. Such matters must be litigated. Although litigation is the costliest and often the least efficient way of proceeding, it is sometimes the only option.
Commencement of Action
In most cases, a lawsuit is preceded by negotiations between the attorneys. Sometimes those negotiations lead to a settlement short of going to court. Often one of the attorneys will experience the other as being unreasonable or intractable and will commence an action. If a lawsuit is started, pleadings are exchanged and the parties and attorneys meet their assigned judge. Three processes then begin: (1) discovery, (2) evaluations and (3) temporary support and custodial matters.
Discovery is the exchange, usually after formal written requests, of financial records of all types. It can also involve some investigatory work where one party suspects that the other is not €œcoming clean.€ 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 and costly.
Where there are real properties, businesses, 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, a law guardian may also be appointed to represent the interests of the children in the lawsuit.
Support and Parenting Access Schedules
At the beginning of litigation there are usually issues relating to the support of one spouse and/or children during the lawsuit. Such expenses as insurance, medical care, child care, school expenses, and the like also have to be addressed. In addition, parenting time with children during the lawsuit must be arranged.
All of the above matters, as well as other matters such as abusive behavior, contested occupancy of the marital residences, and travel arrangements, can sometimes be resolved by negotiation. But many times they involve motions. Motions are applications on papers made to the judge assigned to the case and resolved, after the filing of papers and oral argument, by decisions issued by the judge. Needless to say, such motions take much attorney’s time and can be very costly.
Once discovery and evaluations are completed, if the case is not settled, it is set down for trial. 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 or even weeks 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.