Some cases cannot be resolved in a non-contested setting. This could be due to a lack of trust or an unwillingness to reach a compromise. In a litigated case, we gather information through discovery, negotiate with opposing counsel, advise about possible settlement, and if necessary, prepare for a trial in which a judge will decide all contested matters.
How do I start the contested process?
Filing with the Court
After the Petition and financial statements have been filed, the court will issue a “summons.” This is the document that will be delivered to the other party to inform him or her of the commencement of the case. You may have heard of this as “being served.” This document can either be delivered by a sheriff or by a private individual known as a “special process server.” In some situations, particularly when each side is represented, this process can be avoided. “Service” is simply where the sheriff or process server hands the other party the Petition and financial statements along with the summons informing him or her of the need to respond to the case that has been filed. The person being served will then have a set amount of time to respond to the summons. Generally, he or she will file a response to the Petition along with his or her own Petition (known as a “counter-petition”).
Settlement Negotiations & Conferences
When parties reach an agreement, settlement documents will be prepared. After everyone signs the settlement documents, the agreement will be submitted to the judge for his or her signature, ending the process.
In other cases, the parties are unable to reach an agreement at this stage. To help move the case forward, most judges will require the parties and their attorneys to come to the courthouse to meet with the judge for an informal meeting. These meetings are often called “status conferences”, “settlement conferences”, or “case management conferences”. Click HERE to learn more about what you can expect at a settlement conference.
- Interrogatories: These are written questions that must be answered, under oath. The questions can be in regard to any matter relevant in the case. For example, an interrogatory can ask a party to list all sources of income, or to provide a detailed work history.
- Production of Documents: This is where one side sends to the other side, a written request for relevant documents.
- Depositions: This is where the attorney asks questions of a person (either a witness or another party in the case). The witness provides his or her answers under oath. A court reporter makes a transcript of the questions and answers. Often depositions take place in an attorney’s office with the parties, attorneys and the court reporter present. The information obtained in a deposition can then be used to conduct further discovery and as evidence at trial.
- Subpoenas for Documents: This is where formal requests are made for relevant documents, such as bank, retirement or employment records.
Depending on the judge, if a case is not settled at the first settlement conference, the case may be set for a second settlement conference to give all parties a chance to work on unresolved issues. Keep in mind, the ultimate goal of the court process is to help parties reach a resolution. If the parties are unable to reach a resolution on their own after a number of settlement conferences with the judge, the judge will set the case for a trial.
After the evidence is presented to the court, the judge will prepare a judgment that outlines how a case will be resolved. The judgment will likely describe how property is to be divided, how the parties will share parenting time, whether maintenance and/or child support will be paid and how the attorney fees will be paid. The judgment may also address any other matters as the judge deems appropriate. The timing of the judgment is greatly dependent upon the judge in the case. In some situations it can take many months following the trial before a judgment is completed. For more information about the length of the total divorce process, click HERE.
Even after the judgment has been entered, the process will continue until all post-trial matters are complete.
The above information is intended only as a general guide. In some cases, events may occur which will result in a different path to the judgment. We will make every effort to keep you fully informed throughout the process and welcome any questions you may have.