CHRONOLOGY OF A MATRIMONIAL ACTION
The following is a general outline of the procedure which a
matrimonial action usually follows including how a divorce or separation is
procured and equitable distribution effectuated. It has been our experience that although
matrimonial actions generally follow the same process, no two are exactly the same.
Therefore, the following outline may not be followed chronologically and in fact certain
stages may even be deleted. However, please review this document so that you better
understand the stages that your matter may follow. Again, at any time during
your representation one or more of the stages that follow may become more important and
deserving of more attention.
1. COMMENCEMENT OF THE ACTION
A matrimonial action is commenced by the personal service of a Summons
With Notice which is simply a one or two page legal document by which one spouse
(Plaintiff) informs the other (Defendant) of the type of action which they intend to
prosecute and the relief which they seek. The party personally served with such Summons
usually retains an attorney who thereafter sends a Notice of Appearance to
Plaintiff's attorney by which he informs Plaintiff's attorney that he is representing
Defendant and further demands a Verified Complaint explained herein.
2. PLEADINGS
Pleadings are detailed papers verified by the parties and exchanged
between their attorneys by which a party alleges, with particularity, his or her grounds
for divorce or defenses.
The Verified Complaint is the pleading by which the Plaintiff
alleges the nature and circumstances of the Defendant's misconduct including the date,
time and place of each act complained of. In response to the Verified Complaint,
the Defendant often serves a Verified Answer which either admits or denies the
allegations contained in the Verified Complaint and either sets forth defenses to
the Plaintiff's action or Counterclaims for divorce, or both. In response to Counterclaims
a Plaintiff serves a Verified Reply by which Plaintiff admits or denies the
allegations contained in Defendant's Counterclaim. A Verified Reply
is similar to a Verified Answer.
A Verified Complaint is sometimes served with the Summons
thereby consolidating the first two steps of this outline.
3. FINANCIAL DISCLOSURE
Financial disclosure is mandatory in all matrimonial actions without
a showing of special circumstances.
The first step in the financial disclosure process consists of the
exchange of the parties' sworn Statement of Net Worth which occurs approximately
twenty (20) days after the service of Pleadings. As you will recall, the Statement(s)
of Net Worth is a form by which the Court and the other party learn of your income,
expenses, assets and liabilities of whatever kind and wherever situated. The Statement
of Net Worth must be accompanied by a current and representative paycheck stub(s) and your
most recently filed state and federal income tax returns.
Beyond the Statement of Net Worth, financial disclosure may also
include the following, to wit:
a. Notice of Discovery, Inspection, and Copying, which requires the
production of original documents such as bank records, income tax returns for previous
years, documents indicating title, etc.;
b. Demand for Interrogatories, which are written questions to be
answered under oath;
c. Depositions or an Examination Before Trial (commonly referred to
as an "EBT") at which you will be questioned, under oath, by your spouse's
attorney and your testimony is transcribed by a Court Reporter who prepares a typed
transcript of the proceeding. Of course, we may also examine your spouse concerning his or
her financial circumstance.
In this area of the State, questions concerning the
grounds for divorce are also permitted at a Deposition.
d. Request for Identity of Expert Witness, etc. by which you inform
the other party of not only the identity of your expert witness, but also his/her credentials,
a summary of the grounds for his/her opinion, etc.
Financial discovery may involve one or more of the foregoing and may
continue for a few weeks or several months depending upon the complexity of the assets at
issue and the cooperation or lack of it on the part of your spouse and his or her
attorney.
4. APPRAISALS
Either after or simultaneously with disclosure, there may be a need to
appraise or evaluate certain marital assets so that they may be equitably distributed. If
real property is not going to be sold, it will usually have to be appraised. Likewise, a
family owned business will need to be valuated by an accountant or business
valuator.
There may also be a need to have a pension valuated by an actuary.
The need for retaining any type of expert depends upon the nature and
complexity of your particular case and of course, the need to consult an expert, whether
it be a real estate appraiser or an accountant to valuate a business, will be discussed
with you. (Note Well!) These experts commonly require retainers which are to
be paid by you in addition to legal fees and customary costs and disbursements.
5. MOTIONS
After the action has been commenced, i.e. the Summons with Notice has
been personally served, there may be a need to make an application to the Court on your
behalf or respond to an application made on behalf of your spouse by his or her attorney.
An application is a request for an Order of the Court granting certain relief during the
pendency of the matrimonial action, often called pendente lite relief. Such
application(s) or request(s) are made by either a Notice of Motion or by an Order to Show
Cause, which is similar to a Notice of Motion but is signed by a Judge and may order
certain relief pending the return date of the motion i.e. the date on which is argued.
There are a variety of applications in matrimonial actions, some of the
more common include temporary maintenance or child support, temporary custody of or
visitation with the children, exclusive occupancy of the marital residence, etc. Other
types of motions include procedural aspects of the case such as motions to compel
financial disclosure or for penalties for wilfully failing to disclose financial
information.
Your appearance on the return date of the argument of the application
is rarely necessary in the eyes of the Court, but most attorneys feel it is important to have the party
present so that the Court knows not only that you are interested in the result, but also
so that the Court understands that its Order will truly affect a real person.
Furthermore, by attending the argument of the application you will have the opportunity to
personally view what occurs during your matrimonial matter.
6. SETTLEMENT
Throughout your matter there may be attempts by either side to amicably
resolve or settle your case before it goes to trial. Settlement negotiations may take a
variety of forms including telephone calls or letters between attorneys, conferences
between attorneys, conferences in the Judge's Chambers at what may be known as Preliminary
Conference or a Pre-Trial Conference as later discussed, etc. Of course, the terms,
conditions and ramifications of any settlement will be fully discussed and explained to
you prior to entering into such settlement negotiations on concluding a settlement.
Your attorney is your agent and, therefore, cannot act without your authority.
Your attorney will
provide you with advice and recommendations, but will expect you to make the final
decision regarding any settlement offer. More often than not, you will be placed in a
position of having to make a decision, sometimes in a very short amount of time,
which may possibly involve concessions on something's in order to gain something on
others. The decisions you make have an impact on you or
your children for years to come. Therefore, you should be prepared to make
such decisions by being knowledgeable about your financial circumstances and
which aspects of your case are most important to you.
7. THE PRELIMINARY CONFERENCE
The preliminary conference is held at the court and you will be
required to appear at the conference. The purpose of the conference is to set forth the
issues of the case and a schedule for the exchange of financial information. The
conference is usually held with the Judge's law assistant, or a court attorney. A date
will also be set for a compliance conference.
8. THE COMPLIANCE CONFERENCE
At the compliance conference the Judge's law assistant will usually meet with the
attorneys and ask if there are any problems with obtaining financial disclosure. The
Court
will inquire as to what is left to be done to settle the matter or to get the case ready
for trial. Dates will be made to monitor the remainder of the discovery process. Once
discovery is completed dates will be made to file a Note of Issue and for a Pre-Trial
Conference.
9. NOTE OF ISSUE AND PRE-TRIAL CONFERENCE
Subsequent to the completion of the financial disclosure and the
necessary appraisals or evaluations of all marital and possibly separate assets, a Note
of Issue and Certificate of Readiness is filed with the Court by which the Court is
notified that both parties are "ready" for trial.
In an effort to avoid a lengthy and expensive trial, the Judge may
schedule a Pre-Trial Conference which is a conference held in the Judge's Chambers
at which both attorneys appear before the Judge. In most cases, you and your spouse will
be required to be available during such Pre-Trial Conference, but you will not
be allowed to enter the Judge's Chambers. Instead, you will wait in a comfortable area in
the main part of the Courthouse while the Pre-Trial Conference is conducted. During
the Pre-Trial Conference, each attorney will advocate the position of their
respective client and the Judge will thereafter offer his input by telling the lawyers
what he thinks might be reasonable under all of the facts and circumstances of the case.
Thereafter, the attorneys will go out to the waiting area and discuss the Judge's
recommendations with their respective clients so as to obtain the proper authority to
settle the case.
The Pre-Trial Conference may take one-half hour or all day,
again depending upon a variety of circumstances including the complexity of your
matrimonial matter, the reasonableness or lack of it on the part of the other party, the
Judge's schedule on that particular day, etc.
10. TRIAL
If your matrimonial matter is not settled during or after the Pre-Trial
Conference, the Judge may schedule another Pre-Trial Conference if he believes
the case is close to settlement, but most often will schedule the matter for trial. If
your case is scheduled for trial, it does not mean that settlement negotiations must
cease. Your case may be settled prior to the date of trial, at the time of trial, or even
after the trial commences. However, once your matter is scheduled for trial, the
attorney will
continue to prepare your case as if it will be tried to completion. While always
hope for the best and desire that your matter will be settled without a trial,
the attorney must always be
prepared for trial in the event your matter does not settle.
11. FINAL DISPOSITION OF YOUR MATRIMONIAL MATTER
Matrimonial matters, as other civil actions, are disposed of by one of
the following, to wit:
a. Decisions of a Supreme Court Justice after trial, rendered
either in writing or in open Court from the Bench;
b. Oral Stipulation which is an agreement between the parties made
in open Court and transcribed by a Court Reporter to which both parties listen and are
thereafter asked to agree to in the Courtroom. The Oral Stipulation is then reduced to a
mere one (1) page writing and ratified by the parties and the terms and conditions thereof
are incorporated into the Judgment of Absolute Divorce or Separation;
c. Most commonly by written Agreement in which the parties
have voluntarily and mutually agreed upon all the issues ancillary to the matrimonial
action. The terms and conditions of the written Agreement may or may not be incorporated
into the Judgment of Absolute Divorce or Separation.
Once an Agreement is fully executed by each party, one or both
allow the other to proceed on their matrimonial action by default and thereafter
the necessary default papers (called a Judgment Roll) are submitted to a Supreme Court
Justice or his or her designated Referee for review and signature.
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