Divorce Litigation

It has been said that litigation represents the failure of all other methods of dispute resolution. The statement is true; but in the realm of matrimonial law, litigation is nevertheless often unavoidable.

Sometimes, litigation is necessary because there is an issue upon which the two spouses have a fundamental disagreement; often regarding custody or parenting time of their children.

Other times, there may be no particular substantive dispute except that one spouse refuses to get divorced. In that scenario, litigation (filing the papers and having your spouse "served") is the only way to move forward.

Here, I will give an overview of the litigation process.

It's important to note that the vast majority of litigated cases settle during the litigation process, usually fairly early in the process.

In other words, the reader should not assume that the entire process described below is inevitable. Quite the contrary; nine times out of ten, the case will settle prior to a trial being held - or even scheduled.

In fact, the case will often settle at the first or second court appearance.

Overview of the Litigation Process

This is a chronological list of the steps of a fully litigated divorce case.

1) Filing the Summons

The summons is the official start of litigation. Depending on the circumstances it may be emailed to your spouse or your spouse's attorney. Otherwise, it is personally served on your spouse. Once it is personally served, your spouse has 20 days to respond.

2) Notice of Appearance.

Your spouse must retain counsel and file a document announcing that your spouse will participate in the proceedings.

Alternatively, your spouse could proceed "pro se" (representing him or herself), but that is rare.

If your spouse neither retains counsel nor represents him/herself within 20 days, then your spouse would be in default. As a practical matter, this only happens when there are no significant financial or child-related issues. The vast majority of individuals appear for their divorce case, even those who are strongly resisting the process.

3) Verified Complaint and Verified Answer

Technically, the next step is to exchange a formal complaint and an answer, although with modern, "no fault" divorce, these documents are of little consequence in a divorce litigation and are sometimes disregarded altogether.

4a) Preliminary Conference (PC)

The preliminary conference is the first court appearance. This does not happen automatically. Rather, one of the attorneys must file a formal request for a conference, at which point the court system will assigned a judge and select a date to appear.

Both spouses as well as their attorneys must appear at the conference. By this time, you are supposed to have completed initial financial disclosure (though not all attorneys steadfastly observe that rule.)

The preliminary conference has a few purposes.

(i) If there are issues that should be addressed while the case is pending (parenting schedule, support, use of the marital residence, etc.), they can be addressed in a stipulation and ordered by the court.

(ii) A schedule is set for the parties to exchange basic financial documents (three years of bank and investment records, credit card statements, real estate records, and so forth), and for their attorneys to conduct financial disclosure.

(iii) The judge will usually take this opportunity to address the clients and encourage them to settle the case. In some instances, this speech is sufficient to bring a recalcitrant spouse to the negotiating table.

4b) Pendente Lite Motions

Above, I mentioned that one of the things you can do at the PC is to address issues that need immediate action, such as a parenting schedule, support, etc.

In reality, in most cases where these issues are at play, one parent will file a motion asking the Court to make a decision.

This way, you can try to reach an agreement with your spouse, but in the absence of an agreement, the judge will issue a ruling.

5) Disclosure; Additional Motions

Following the PC, the parties will conduct and exchange financial discovery.

At a minimum, this would involve the exchange of three years of bank account, investment account, retirement account, and credit card statements; documentation relating to real estate; documents relating to any other marital assets.

Depending on the case, subpoenas, interrogatories, and depositions may be warranted.

This is the stage where the financial aspect of the case must be fully explored and analyzed.

6) Custody Proceedings

If custody is an issue, most judges will put this issue on a "fast track" and handle it separately from the financial aspect of the case.

6a) Forensic Evaluation

Assuming the judge orders a forensic evaluation, this will be conducted and a report will be returned to the court. This can take anywhere from 6 weeks to 4 or 5 months.

6b) Receipt of Report / Settlement Conference

The report is sent to the judge and the lawyers retrieve a copy. With this information as a guidepost, the judge will often schedule a settlement conference; the theory being that if one party was viewed unfavorably by the forensic evaluator, that party may wish to settle the case.

6c) Pre-Trial Conference

If the custody case does not settle, the attorneys prepare their witness and exhibit lists; prepare a proposed resolution for the judge; and appear at a pre-trial conference to discuss the upcoming trial.

6d) Trial and Decision

The judge will hold a trial solely on the custody issue, usually lasting anywhere from 1 to 4 days, though sometimes longer, and issue a decision.

7) Compliance Conference

The attorneys, and clients, appear the courthouse to discuss whether discovery has been completed satisfactorily. Most likely, the judge will make another attempt to get the attorneys to settle the case.

8) Additional Compliance / Status Conferences

Usually, there are still a few discovery issues. Or, perhaps the attorneys feel that there is a good chance of settling the case, so they are not ready to mark the case trial-ready yet. In that case, the court will schedule another status conference, usually 4-6 weeks in the future.

9) Note of Issue / Trial Readiness

Once discovery is complete, the case is marked ready for trial and the plaintiff files a Note of Issue, declaring his/her readiness for trial.

10) Neutral Evaluation Program

In New York County, the case may be referred to the neutral evaluation program, in an additional effort to settle the case and save everyone the time and expense of trial.

This program calls for the parties and their attorneys to appear at the office of an experienced matrimonial lawyer, who will basically listen to each party's arguments, review the evidence, and give you an evaluation of what the likely outcome of the trial will be.

11) Pre-Trial Conference

Same as the pre-trial conference for the custody aspect of the case.

The parties and the attorneys prepare witness lists, exhibits lists, and appear before the judge to plan an orderly trial, and, perhaps, make one last effort to settle the case.

12) Referral to Referee

Usually, the financial trial will be referred to a different judge called a "referee."

13) Trial

Everyone appears before the assigned referee and the trial is held, over however many days the evidence requires.

14) Referee's Decision

The referee reviews the evidence and issues a decision (technically, a recommendation to the presiding judge).

15) Motion to Confirm / Reject

Whichever attorney is more eager to bring the case to an end files a motion to confirm or reject the referee's report, depending on whether that attorney's client is satisfied with the referee's recommendations.

16) Final Decision

The presiding judge reviews the motion to confirm/reject and issues a written decision.

17) Appeal

If either party is unsatisfied with the judge's decision and has the inclination to challenge the ruling, that party has 30 days to notify the court of its intention to appeal.