Contested Litigation

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?
In general, a contested divorce (or other family law matter) will proceed as follows: We will first meet with you for an initial consultation.  This is an information gathering meeting where we will learn about your situation and help you better understand the process. It is at this time that we evaluate whether your matter may be resolved through a non-contested process, or whether the situation requires a more aggressive approach. Contested cases are often those where there is an imbalance of information, where domestic violence is present, or where there is a lack of trust. There are important steps one should take prior to commencing a contested process. At this meeting, we will review those steps and provide you with a roadmap of the process. We will review our representation agreement and discuss the cost of litigation. If you wish to move forward, we will work with you to prepare a course of action to begin the process.

Filing with the Court
Two financial documents are required in order to start your case. The first is a statement of your income and expenses. The second is a statement of property and debts. In addition, a Petition is needed. The Petition is the request for a divorce and other orders from 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
Assuming both sides have information sufficient to evaluate settlement options, it is often around this time that settlement proposals are discussed. In other cases, more information must be gathered (see “discovery” below).

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.

Discovery
Throughout your case, the attorneys will be working to gather information (a process called “discovery”) to help them analyze settlement options, and if necessary, to prepare the case for trial. This can be done informally (i.e. through phone calls to opposing counsel to request account statements) or it can be more formal. Formal discovery consists of a number of tools attorneys can use to obtain relevant information. A few of those discovery tools are as follows:

  • 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.

Trial
A trial is a meeting of the parties, the attorneys and the judge where information is presented and the judge makes a decision regarding all matters in the case. The information is presented through witnesses who answer questions posed by the attorneys (and sometimes, the judge). Both parties will generally testify (answer questions under oath). Other witnesses with relevant information may also be required to testify. These witnesses could include other family members, childcare providers, vocational experts, business valuation experts, CPAs and child psychologists, just to name a few.

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.

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Important Notes

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.

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If you are interested in discussing your options, give us a call.