Frequently Asked Questions:
Going to Court

by Elayne B. Kesselman, Esq.


    What happens after I retain a lawyer?

    Every lawyer has his own style. Some will contact your spouse or her attorney through the mail, advising her that he has been retained and asking that she or her attorney contact him. Others may ask you if you want to tell your spouse yourself that you have hired a lawyer. Still others may want to immediately start the divorce action, even before your spouse knows you have hired an attorney. This is sometimes necessary when judicial help is immediately needed in the case, such as when a spouse is not receiving support, is being deprived of contact with his children, or is fearful the other spouse will hide assets. Also, if you and your spouse live in different jurisdictions, and your lawyer wants the action to be in your jurisdiction, he may want to commence the action in your jurisdiction before alerting your spouse to your intention to divorce, thus pre-empting her from commencing an action in her jurisdiction.

    What happens after my spouse discovers I have hired a lawyer?

    Ideally, once your spouse learns you have hired a lawyer, she will hire one as well, and the two lawyers, with input from their clients, will try to resolve all issues, such as custody of the children, visitation, the amount and duration of support, the distribution of marital assets and debts. Before issues can be resolved, both sides usually disclose, in a sworn statement or at a deposition, the extent of their income and assets, so that both sides know what is available for distribution.

    Once an agreement is reached, it is written in a document usually called a Stipulation of Settlement (if an action has already been commenced) or a Separation Agreement. Both spouses sign the document, which becomes as binding on them as if they had a trial, and the judge reached the same resolutions. The lawyers will then file with the court the paperwork necessary to obtain a divorce for the parties.

    How long does it take to get a divorce?

    The amount of time varies according to whether you and your spouse are able to reach an agreement or must appear before a judge, and how back-logged the court is with cases. A divorce can take many years if the parties cannot agree on issues or a party refuses to disclose financial information.

    What happens if my spouse and I cannot resolve the issues?

    When issues cannot be resolved through negotiation and compromise, a lawyer will usually seek the assistance of a judge. To do so, she must commence an action or a proceeding.

    What is an action?

    An action or proceeding is a law suit. In an action for divorce, one spouse (the plaintiff or petitioner) is suing the other (the defendant or respondent) for a divorce. The plaintiff/petitioner wants a judge to grant him a divorce. The defendant/respondent may or may not want to fight the divorce. The plaintiff/petitioner and defendant/respondent are known as the parties to the action. Actions in matrimonial matters can also be for annulment or separation. A lawyer must be consulted with regard to these and any other choices.

    How is an action started?

    In some states, known as "filing states," an action is started--or commenced, as lawyers like to say--by filing a summons, petition, and/or complaint in the courthouse that hears divorce actions where the plaintiff/petitioner lives. (Depending on the state, the person who starts the action may be called a plaintiff or a petitioner.) After the papers are filed, they must be presented to the defendant/respondent. (Depending on the state, the person defending the action may be called a defendant or a respondent) within a certain period of time. Presenting papers in a legal action is called "serving" the papers.

    In other states, sometimes call "service states," the summons, petition and/or complaint are first served on the defendant/respondent, then filed in the courthouse.

    Most courts charge a filing fee when the first paper is filed in a case. The court assigns the case a number, usually called an Index Number or Docket Number, and all future papers in the case that come to the court are filed under that number and kept in the courthouse.

    Does it matter if I am the plaintiff/petitioner or the defendant/respondent?

    The stigma once associated with divorce, and therefore with being the defendant/respondent, seems to be gone. Nevertheless, largely for emotional reasons, some spouses prefer to be the plaintiff/petitioner. In addition, if there is a reason to start the action first, such as the need for immediate judicial intervention in the case, or the desire to have the action in one jurisdiction as opposed to another, then the party wishing to start the action must be the plaintiff/petitioner. Your attorney may have a strategy in mind that would necessitate you being one party but not the other.

    Am I better off in Family Court than in Civil Court?

    The decision should be made by your lawyer. In some jurisdictions, the Family Court cannot grant divorces, and so if you want a divorce, the Family Court is not an option. If you only want support or visitation rights, and cannot afford a lawyer, the Family Court might be right for you. However, this decision is so important that it should only be made by a lawyer.

    What happens after an action is commenced?

    Every state is different, but in general, after an action is commenced, the defendant/respondent must respond to the allegations the plaintiff/petitioner has made against her. The document containing the plaintiff/petitioner's allegations is usually called a Complaint or Petition. The response is usually called an Answer.

    In addition to answering, the defendant/respondent can counterclaim, which means that in the Answer she sets out allegations against the plaintiff/petitioner. The plaintiff/petitioner must then answer those allegations, in a document usually called a Reply. Thus, in a litigated case, the initial documents are the Complaint, the Answer and, if necessary, the Reply.

    If the case actually is heard by a judge (that is to say, it does not settle) the parties must prove to a judge that what they have written in the Complaint, Answer, and Reply is true.

    My husband and I agree we want to be divorced, but we can't agree on anything else. Do we still have to commence an action?

    Yes, but the trial or hearing will be limited to the areas of disagreement. The more you and your spouse agree, the fewer issues a court must decide, and the less expensive your case will be.

    What happens after the parties exchange the Complaint/Petition, Answer, and Reply?

    The steps depend on the state in which you live. Some states may require the parties and their lawyers to appear before the court for a conference, at which time issues are identified, and a judge or law assistant may make an effort to settle the case. In other states, the lawyers themselves may arrange a schedule by which time financial information must be exchanged. Sometimes, if immediate relief is needed, a party must make a request of the court for that relief. The request is called a motion.

    What is a motion?

    A motion is a request of the court for some form of relief. Because it takes so long in some jurisdictions for a matrimonial case to be tried, and a party often needs immediate help, such as support, her lawyer will come before the court with a request for temporary support while the action is on going. In some jurisdictions, such requests are made "on paper"--through sworn statements--and in other jurisdictions the lawyer must go to court and make an oral application--request--for the relief. Some judges will conduct a short hearing--or trial--with regard to the requested relief and you must appear in court and testify.

    Motions tend to be expensive. The paperwork may take hours of the lawyers' time, and often a court will still require the lawyer to appear in court to discuss the motion even if it is to be submitted to the judge on paper. However, when negotiations fail, and immediate relief is needed, a motion may be the only means to get that relief.

    What kinds of issues are usually raised in motions?

    The need for temporary support, temporary custody, a visitation schedule, a financial discovery schedule, use of a home or car, requests that one spouse be prevented from transferring assets, can all be addressed in motions.

    What exactly does the motion consist of?

    A written motion is composed of a set of sworn statements--called affidavits--where the party seeking relief, or the party opposing the relief sought, presents his or her situation in clear and concise terms. Usually your attorney will obtain from you the information she needs to draft the affidavits, will ask you to carefully review what she has written, will make changes as necessary, and then will have you swear to the truth of what is in the affidavit by signing your name and having your signature notarized.

    What goes into the affidavits depends on the kind of relief you are seeking and the law, but most motions contain a brief background of the parties and the case. This is particularly important if the same judge is not hearing every aspect of the case. Once the background (length of marriage, number and ages of the children, what has happened in the case so far) is described, the affidavit is directed to the relief sought. Thus, if the purpose of the motion is to ask the judge to award you an immediate visitation schedule, the affidavit in support of the motion would explain to the court what schedule the parent wanted and why it was important to have that schedule. The parent opposing the motion would put in his affidavit the reasons why he believed the schedule was impractical.

    Depending on where you live, motions usually consist of the moving papers, the opposition papers, and the reply papers (which reply to the opposition papers). In some courts, however, motions are made orally. Each attorney argues his or her position and the court may ask questions of the lawyers.

    When deciding motions, how does the judge know who to believe?

    Judges make (or should make) decisions based on the statutory law (the law as enacted by the legislature) and the case law (the law as it has evolved through previously decided cases). In matrimonial cases, the judge may often consider what is "equitable"--meaning fair--under the circumstances of the case. Sometimes, when the papers before the judge are simply too contradictory, the judge will conduct a hearing on the issue.

    Can I get my spouse to move out of the house while I am waiting for a trial date?

    That depends on the laws of your state. In some states, unless there is physical or emotional abuse, a court will not force a spouse to move out of the house until the action is tried, and the judge has the chance to decide which party, if any, should be allowed to use the house.

    How long does it take a judge to decide a motion?

    That varies depending on the court and how backlogged it is. Sometimes a judge will make an immediate order, even before she hears the whole motion, if your lawyer can show that such immediate relief is needed.

    What is an order?

    An order is a directive from the judge. Judges sometimes decide motions, for example, by issuing a written order. Sometimes they issue a written decision which the attorneys must then write up in the form of an order to be submitted to the judge for signature. An order can also be oral, such as when a judge, "from the bench," directs one party to do or not to do something.

    Can I appeal an unfavorable order?

    The answer depends on the rules of the jurisdiction. Even if an appeal is allowed, it may be too expensive to pursue, or inadvisable because your case will be going to trial shortly anyway, at which time the judge can address the issue. The question of whether to appeal an unfavorable order should always be discussed with your attorney. You should know the approximate cost involved, the likelihood of success, and the length of time it will take the appeal to be decided before you decide whether to appeal an order.

    Are motions the only way immediate issues can be resolved?

    Depending on the judge, your lawyer may be able to schedule a court conference for the purpose of trying to resolve an issue without the expense of bringing a motion. Not only do you save money, but if the judge is willing to hear the problem at a conference and suggest a solution, you save a great deal of time.

    How should I act at a conference?

    Judges prefer that lawyers do the talking. A court conference is not the time to voice outrage at the judicial system for taking so long, or at your spouse. While judges are very busy and see large numbers of people, you do not want to be the individual the judge remembers when and if your case goes to trial and the trial is held before the same judge.

    Won't the same judge always be involved in my case?

    Not necessarily. It depends on where you live. In some jurisdictions, the same judge may hear motions in your case, but when it is time for trial, a different judge may conduct the trial. In other jurisdictions, you may be before a different judge every time the case is in court. In still other jurisdictions, the same judge will hear every motion and will conduct the trial.

    What if I don't like the judge?

    Judges recuse themselves (take themselves off the case) when there is a conflict between them and some aspect of the case. For example, if a judge is assigned to your case, and he was your husband's former law partner, he will recuse himself from the case, and a different judge will be assigned. The fact that a party does not like a judge is not a basis for recusal.

    How do I prepare for a trial?

    Your lawyer will prepare you for trial by reviewing with you the questions she intends to ask and by advising you of what questions to expect from your spouse's lawyer on cross-examination. In addition, your lawyer should explain the order in which a trial is conducted and who has what burdens of proof. Your lawyer is likely to tell you what to wear, how to sit on the witness stand, whether to address your comments to the judge, the questioning attorney or the jury, if there is one. If possible, your lawyer will bring you to the courthouse before your trial, where you can watch another trial and get a feeling for what the courtroom is like.

    In addition, long before the trial date, the lawyer will have identified, interviewed, and prepared your witnesses for trial. Such preparation, like your preparation, involves going over what questions will be asked and what to expect from the other attorney. In the case of an unfriendly, or hostile witness, your lawyer will have issued a subpoena requiring the witness to appear in court on the trial date and possibly bring relevant documents.

    What happens at the trial?

    Before a trial begins, some judges will ask to see the lawyers in chambers (the judge's room) and will make a last-minute effort to settle the case. If the case is settled, the terms of the settlement are then "read onto the record" which means dictated in the courtroom for both parties to hear. A court reporter writes down the terms. The judge will usually ask each spouse, one at a time, to take the witness stand, and swear, under oath, that he or she has heard the terms of the stipulation and has agreed to them.

    Many lawyers do not like the resolution of the case to be dictated on the record, because they fear an important term will be overlooked. At the same time, they do not want to leave the courtroom to draft an agreement, only to find that a party has changed his or her mind. Sometimes they will dictate the terms onto the record, but also state, on the record, that the terms will be reduced to writing, which the parties will sign.

    If the case is not resolved, the trial is usually commenced by the lawyers notifying the court of any issues that have been resolved. The resolution of those issues is read onto the record, and no testimony will be heard about those matters.

    Once that is done, some judges will ask the attorneys for opening statements, in which the lawyers present to the court a short explanation of what they intend to prove at trial.

    In some jurisdictions, aspects of a matrimonial case may be tried before a jury, in which case the lawyers would be very likely to make opening statements.

    After opening statements, the moving party, the attorney for the plaintiff or petitioner, as he or she is called, begins his case. While the spouse who is the plaintiff/petitioner usually takes the witness stand first, his lawyer may decide to call the other spouse to the stand, to question her first. Such strategies vary, but the procedure is usually is the same. The moving party presents a witness whose testimony, elicited by the attorney's questions, will bolster that party's position. When the attorney is done questioning the witness (such questioning is called the direct examination) the other attorney has the right to cross-examine the witness, but can waive that right. After cross-examination, the first attorney can further question the witness. That is called redirect and is limited to issues raised during the cross-examination. The other attorney can then conduct what is called the recross-examination. Such requestioning may continue, but usually must be limited only to what was testified to just previously. Without that limitation, new areas could be opened, and the questioning would go indefinitely. Eventually, the lawyers will finish with that witness and the lawyer for the moving party will call his next witness.

    When the moving party is through calling all of his witnesses, his attorney tells the court that he rests. At that point, the lawyer for the defendant or respondent may ask the court to dismiss the case. If the judge grants that request, called a motion, the case is over and the moving party has lost. Even if the divorce is dismissed, however, the laws of the state may still permit the court to decide support issues, or the losing party may have no choice but to go to the Family Court to seek support or other relief, or to begin a new action.

    Such dismissal is unlikely to occur. More typically, the judge will deny the motion, and the defending attorney begins calling witnesses who will testify on behalf of his client. Now the attorneys' roles have changed. The lawyer for the defendant/respondent conducts the direct examination and the lawyer for the plaintiff/petitioner conducts the cross-examination.

    After the defending side rests, the attorney for the moving party has the right to call rebuttal witnesses who are similarly questioned by both attorneys. When rebuttal is over, the lawyers may make closing statements. When the case is only heard by a judge, as opposed to a jury, the judge often does not want to hear closing statements.

    If the case is tried before a jury, the judge will read the jury instructions after the closing statements are completed. The jury will then deliberate and render a verdict. If the case is only heard by a judge, there are no instructions. Some judges make immediate decisions, from the bench, called "bench decisions," others ask the lawyers for both sides to submit post-trial memoranda by a certain date. After reading the memorandum, the judge issues a written decision.

    Once a decision is rendered, the lawyers for one or both sides may have to write the judge's decision in the form of a judgment of divorce, which judgment the judge eventually signs.

    Sometimes the wording of the judgment becomes an issue between the lawyers, and motions are made over what should be contained in the judgment of divorce.

    Who are the witnesses who testify at a trial?

    Usually each party testifies at the trial at some point, no matter what the issues. However, the number and identity of other witnesses depends on the issues to be tried and the law as it applies to each of those issues.

    In a case where custody and visitation are issues, the witnesses, in addition to the parties, often include family members or friends who have observed the children with either or both parents, baby sitters, nannies, teachers, pediatricians, and psychological experts who have either been appointed by the court to evaluate the competency of each parent to have custody of the child or children, or privately hired psychological experts who have usually only met with one parent and the children. Such experts are sometimes referred to as "hired guns" because their testimony will be favorable to the party who hired them.

    A child may meet with the judge "in camera," which means privately, usually with a court reporter present. It is rare for a child, even a teenager, to testify at trial.

    If a guardian ad litem,--a lawyer or mental health professional who acts (in his opinion) in the child's best interests--has been appointed for the child, the guardian may testify as well or may issue a report with his or her recommendations.

    In trials where financial matters are to be resolved, the parties may testify about their income, assets, expenses, abilities to become self-supporting, business set backs--any matter relevant to finances. To save time, sworn statements may be submitted to the court. These statements contain a description of each party's income, assets, and expenses. Accountants and bookkeepers may testify as well. In cases where financial matters are very complex, a court appointed economic expert may testify about a party's business, or each party may hire his or her own expert.

    In trials where the issue is the entitlement to the divorce itself, the parties usually testify, trying to convince the judge that their version of what happened (or did not happen) in the marriage is accurate. Friends or relatives who have observed relevant conduct may testify as well.

    How does the judge decide who is telling the truth?

    Judges rely on their experience to decide who is telling the truth, but certainly inconsistent testimony, faltering, blatant lies, sworn statements that can be shown to be inaccurate, body language--such as stiffness, blushing, crossed arms--may all influence a court. A witness who is argumentative, pretends not to understand simple questions, or who has failed to comply with previous court orders also does not do much to help his or her cause.

    How does the judge decide who should get which assets?

    Judges use the statutory (legislated) law and case law (law which has evolved through previously decided, relevant cases) to decide issues, and they also may consider what is equitable, or fair, under the circumstances of your case. Laws vary by state. In some states, assets acquired during the marriage, with some exceptions, must be divided equally between the parties, but issues can arise over what an asset is worth.

    In other states, assets acquired during the marriage, with some exceptions, are divided equitably between the parties. The law usually defines equitable, which is based on a number of factors, such as the length of the marriage, the amount of assets, the contributions each party made to the acquisition of the assets, to the marriage, and to the family, or who has custody of the children, among other factors. Testimony revolves around proving the existence, or lack of existence, of these factors.

    The testimony of the financial expert is very important to establish the value of an asset.

    How does the judge decide how much support (also called "maintenance") a spouse should get and for how long the support should be paid?

    Judges use the statutory (legislated) law and case law to decide issues, and they also may consider what is equitable, or fair, under the circumstances of your case.

    Laws vary according to state. In general, a court decides how much support a spouse is entitled to based on the economic situations of the parties, their ages, health, ability to become self-supporting, past standard of living, assets, education, sacrifice made during the marriage to raise children, promote a career, and other factors. Testimony revolves around proving the existence, or lack of existence, of these factors.

    How does the judge decide who gets custody of the children?

    Judges use the statutory (legislated) law and case law to decide issues, and they also may consider what is equitable, or fair, under the circumstances of your case. Custodial decisions are usually based on what the judge believes is in the best interests of the child. Stability has often been considered a cornerstone of what is in the child's best interest; therefore courts place a lot of weight on which parent has been the child's primary caretaker. Other factors include the child's age, gender, and relationship with each party.

    Depending on the child's age, the child's desires may be taken into consideration. Also, courts generally are reluctant to split up siblings. The ability of each parent to provide care for the child and the parent's work schedule are also often considered.

    Because so much emphasis is placed on which parent has been the child's primary caretaker, testimony often revolves around which parent has performed day-to-day tasks for the child, such as (depending on the child's age) dressing him, feeding him, getting him off to school, doing homework with him, getting him to play dates, buying him clothing and toys, going to parent/teachers meetings, bringing the child to church or synagogue. In homes where a nanny has been employed, the nanny's willingness to continue to work for one parent rather than another might play a role in the court's decision.

    The testimony of an impartial, court-appointed psychological expert will also be important, as will the testimony of the guardian ad litem.

    In general, if one parent has moved out of the home without the children by the time trial has started, it will be difficult for that parent to win custody of the children.

    What is joint custody?

    Increasingly, the term custody is being defined by what the parties want it to mean, rather than any particular legal definition. Traditionally, having custody of the children meant that the children lived with one parent, and that parent made all the day-to-day and long-term decisions concerning the children.

    Joint custody traditionally meant that the children divided their time in an equal or somewhat equal fashion between their two parents.

    Today, attorneys trying to negotiate a settlement may combine these traditional concepts in order to arrive at a proposal palatable to both parties. For example, the children could make their primary residence with one parent, but both parents decide issues concerning the long-term welfare of the children, such as what school they will attend, whether they will see a therapist, when they will commence orthodontia, and the like. The parent with whom the child is primarily living would make the day-to-day decisions concerning the children. The arrangement may be called "joint custody," but it is the definition of the term, as provided in the parties' agreement, which, for the most part, is more important than the terms used.

    Although the terms are increasingly dependent on what the parties define them to be, there are some considerations to keep in mind. First, in some jurisdictions, the term "joint custody" may mean, regardless of the agreement, that both parents have an equal right to have the children be with them, so that law enforcement would not become involved if the nonresidential parent refused to return the children to the custodial parent. Similarly, if the term "joint custody" is used, as opposed to "custody" or "sole custody," the parent who does not have residential custody of the children may have a less onerous legal standard to meet to have custody of the children changed. For example, in New York, if both parties have custody of the children, such as before they are divorced, the parent seeking custody must demonstrate he or she is the more able parent. If the parent does not have custody, however, he or she must demonstrate that the custodial parent is unfit, a harder standard to meet. For this reason, some attorneys will not use the term "joint custody." Rather, the parent with whom the children reside is deemed to have custody, but decision making is shared.

    Even when the parties agree to joint decision making, it is often helpful to also place in the agreement a method of resolving disputes, such as mandatory consultation with a child's teacher or physician in the event the parties cannot agree on a matter concerning the child's education or health.

    Finally, if the case is tried in front of a judge, rather than settled, the judge will decide the type of custody the parties will have. Depending on the jurisdiction where you live, courts may be reluctant to grant joint custody to parents who have been unable to resolve their differences without a trial.

    How does the judge decide a visitation schedule?

    Judges prefer, even in a contested custody case, that the parties, through their lawyers, work out a visitation schedule. However, if the parties cannot work out a schedule, each parent may present the court, through testimony, a proposed schedule and the reasons he or she wants that schedule in place.

    How does the judge decide how much child support must be paid?

    Most states have a set percentage of income which the noncustodial parent must pay to the custodial parent as child support, though such percentages are subject to challenge on a case-by-case basis. Some states allow for extra support in addition to the set amount, and those extras may depend on the life-style the child enjoyed before the divorce, or would have enjoyed had the parties not divorced, as well as the child's special needs and aptitudes. Child support usually stops when the child reaches the age of 18 or 21, depending on the state, or if the child becomes otherwise "emancipated" by, for example, getting a full-time job while he or she is no longer in school, getting married, or entering the military.

    How does the judge decide who has to pay legal fees?

    Legal fees depend on the law of your state. In general, legal fees are awarded to the spouse who cannot afford them, provided the other spouse can afford to pay them and provided the amount of legal work done, and the amount charged for that work, was reasonable under the circumstances of the case.

    Can the judge's decision be appealed?

    The judge's decisions usually can be appealed. Factors that go into deciding whether to appeal the decision should include the degree of the perceived injustice, the chances of success on appeal based on similar cases, the amount of time the appeal will take to be decided, the results desired, and the cost. For example, if the appellate court in your jurisdiction is backed up, and the issue to be appealed involves visitation with a 16-year-old child, the issue may not be worth appealing if it is unlikely to be decided before the child turns 18, when visitation will no longer be an issue.

    How much could an appeal cost?

    Appeals can be expensive. The trial transcript must be ordered (which means fees must be paid to the court reporter), and printed up (which means fees are paid to a printer or photocopy store) in a book called the Record. (Some courts permit the parties to submit only the portions of the trial transcript that are relevant to the issues to be appealed. In that case, the book is often called the Appendix.) The trial exhibits usually must also be photocopied and added to the Record or Appendix, though some courts may allow the exhibits themselves to be submitted. Legal fees, usually billed by the hour, can be high, as the attorney must spend time reading the entire transcript, correcting it for errors and submitting those corrections to the other side or to the court, researching issues, writing the appeal, writing an answer to the opposition to the appeal, if such answers are permitted to be submitted. Some appellate courts also allow attorneys to present oral argument in favor of their position on appeal. The lawyer must prepare for oral argument and present it on the date the court assigns.

    The appeal of a motion will be less expensive because if there is a transcript, it is usually shorter than a full trial transcript, or there may simply be the set of papers which each side submitted to the court. However, you will still be billed for the attorney's time.

    What if I lose on appeal?

    Depending on the jurisdiction and the issues to be decided, you may be able to appeal to still a higher court. Such appeals occur when the issues are significant and the parties can afford the expense.


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