Sometimes no matter what you do, your spouse will fight you in court over your divorce. Whether they lack emotional maturity, or they just want to make your relationship break up as painful as possible, you cannot force an uncontested divorce on an unwilling spouse.
If your spouse does not want to settle or work anything out outside of court, if you file a complaint for divorce they can file an answer with the court and your case is now contested.CONTESTED DIVORCE: OVERVIEW
The most important thing to know regarding the contested divorce process is that your case can settle at any time. You and your spouse can settle upfront before the First Case Management Conference, or you can settle at any time even after your case gets going on the contested track. The courts encourage you to settle your case. Settlement is cheaper for you and your spouse, and quicker for you and your spouse. Once your case is settled it can very quickly be converted to a final divorce judgment. If your contested case does not settle it can take up to one year (or longer) before trial, and your litigation costs can get out of hand very quickly.CONTESTED DIVORCE: PROCEDURE
- The contested divorce process starts exactly like the uncontested divorce process, with the filing of a complaint, assignment by the court of a case docket number, and preparation by my office of the summons.
- The Summons and complaint are then served on your spouse.
- Once served with a summons and complaint your spouse has three (3) options if they want to formally contest the case in court:
- File an Answer - OR
- File an Answer and Counterclaim - OR
- File an Appearance
- An Answer is a formal written reply to the allegations that you placed in your complaint. To be valid and make the case contested your spouse, or their attorney, has to file the Answer with the Court and serve a copy on your lawyer. Once the Answer is filed with the Court the court places your case on the contested calendar.
- A Counterclaim is a formal written claim filed by your spouse against you stating (1) why they want a divorce from you; and (2) what issues they want the court to resolve in their favor in the divorce case. The counterclaim is usually filed with the Answer.
- An Appearance is a formal written document in which your spouse acknowledges that they received the complaint. It also states that your spouse wants to “be heard” on certain issues in the case. The court treats an appearance exactly like it treats an Answer – your case will be placed on the contested track.
- If you have children, born during the marriage, you will receive a notice to attend a Parenting Education Class.
- Now that your case is on the court’s contested calendar the court will schedule a Case Management Conference (CMC). The CMC is a scheduling conference where the following issues are discussed and dates are set for events in your divorce case to be completed:
- First the Court sets a TRACK for your case – (i.e., how much time it will give for the case to be ready for trial). The options are EXPEDITED, STANDARD, PRIORITY AND COMPLEX. Each track gives the parties more or less time to get ready for trial. Track assignment depends on the complexity of your case.
- Second, if there are children, and you and your spouse don’t have an agreement on who will have legal and residential custody, and what schedule of parenting time or visitation you agree on, then the court will order you and your spouse to meet with a custody mediator at the courthouse to try to put together a custody and parenting time agreement. The date of the meeting with the mediator is often times decided in court at the Case Management Conference.
- Third, the court will want to know what issues need to be resolved prior to or at trial. The standard issues are: Child Support, Alimony, Equitable Distribution, Counsel Fees, Medical Insurance, Life Insurance, and Other Issues (e.g., debt issues)
- Fourth, the court will set deadlines for you and your spouse to exchange documents (usually financial documents – bank statements, retirement and investment account statements).
- Fifth, the court will inquire whether either you or your spouse need to hire and pay experts to prepare reports and appraisals for trial or settlement purposes. Examples of common experts retained in divorce litigation are: Accountants for business valuations, forensic accountants to track business or marital money that has been moved around, pension analysts to value pensions, employability experts to evaluate a spouse who is either not working, or not earning as much as they could if they fully used their education or work experience, and appraisers to value the marital home or other real estate. The court will decide who will pay for the experts in advance and how the payment will be allocated.
- Sixth, the court will schedule future dates when you, your spouse, and your lawyers will have to come back to court for conferences, settlement panels and trial.
- In some counties the CMC is via telephone with only the lawyers participating on the phone call, in other counties the CMC is conducted in-court with you, your spouse and both of your lawyers present. In some counties the parties can submit a Case Management Order agreeing on case issues in advance of the date for the CMC for the Judge’s review and signature.
- After the CMC discovery will be commenced (or continue). You and your spouse will exchange Interrogatories, Custody Interrogatories, and Notices To Produce.
- Approximately 60 – 90 days after the CMC you and your spouse will prepare and submit Early Settlement Panel (ESP) Proposals to each other and to two or three panelists, depending on the county.
- The parties attend the Early Settlement Panel (ESP) with their lawyer.
- The ESP is not when the Judge decides your case. The ESP is just another stop on the road to trial or settlement. Each county has a pool of attorney panelists who sit on panels to review and offer settlement proposals to divorcing couples. The panelists review the proposals and then provide non-binding advice and suggestions on how the couple can settle their case. Neither you nor your spouse are bound by the panelists advice or suggestions. The panelists do not report their advice/suggestions to the Judge. The idea behind the ESP is to have you and your spouse hear how a Judge would likely decide your case at trial. Sometimes hearing the advice/suggestions of neutral lawyers can help you and your spouse get to settlement.
- If the case is settled the parties can get divorced on the same day that the ESP panel meeting takes place.
- If the case does not settle at the ESP panel then the Court will schedule Economic Mediation.
- Like the CMC and ESP economic mediation is not when the Judge decides your case. This is the 3rd and final stop on the road to trial or settlement. Like the panelists at the ESP, the mediator does not tell the Judge what happened, and who said what at mediation.
- Prior to economic mediation the parties again forward settlement proposals – usually the same proposals forwarded to the ESP panelists. The mediator reviews the proposals and then meets with the parties. The goal in mediation is to come to a settlement through compromise.
- If the case does not settle in mediation some counties have (ISC’s) Intensive Settlement Conferences, where you, your spouse, and your lawyer’s show up in court for a full-day to attempt to settle your case. This is your last step before a trial. If your case does not settle at the ISC then you will start your trial on your trial date.
- Pre-Trial. Prior to your trial your attorneys will have to prepare and submit pre-trial briefs to the court. They will have to pre-mark all trial exhibits, subpoena trial witnesses, (including experts) and prepare to fully try the issues in your case on the trial date.
- Trial. At trial you and your spouse will get an opportunity to present your testimony to a Judge, and the Judge, after hearing all the testimony from the witnesses presented, will issue a written decision. The Judge’s decision will not be made on the last day of the trial, but may follow months after your trial.
It should be understood that although the Case Management Conference is your first time in front of the Judge who is assigned to hear your case you won’t get an interim or final hearing on your issues on this occasion. The CMC is not a trial. It is not a hearing on case issues. In the normal case no testimony is taken from you or your spouse, even though you may be sworn in by the court clerk.