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Steps in Divorce Action- The Court Date

You have your first court date scheduled in your divorce action. What can you expect on this date?

If neither party has filed motions seeking any immediate and temporary relief, then likely not much will happen on the first date, especially if there are no children of the marriage. Most counties have what is referred to a matrimonial screening, or some version of this process.

Matrimonial screening is designed to move your case along towards settlement or trial. The matrimonial referee will meet with your attorneys, or the parties if they do not have attorneys, and review the case to see what issues are resolved, and what matters remain to be decided. Most often, when attorneys are involved, the referee will meet with the attorneys alone, then speak with the parties when necessary or appropriate. The referee will review the case file and make suggestions as to how the undecided issues may be settled. Both parties are required to submit a financial affidavit, called a Statement of Net Worth, to the court and each other at least 10 days prior to the court date. The referee reviews the Statements to determine what child support, maintenance (alimony), attorney's fees award, and property and debt distribution may be appropriate. The referee can enter temporary orders of child support, maintenance, and attorney's fees based upon the Statements of Net Worth, but most often a motion will be required in order to receive an award of temporary maintenance and/or attorney's fees. If it is clear where the children primarily reside, a temporary order of child support will be made, with or without motion.

At the first appearance, if child custody or visitation is in dispute, an attorney for your child(ren) should be appointed. Be aware that in most circumstances the parties must pay for this attorney's fees. Most courts will order the parties to pay a retainer to the attorney for the child within 30 days of your first court appearance. The amount of that retainer is usually between $1,500-$2,000. Generally each party will pay a portion of that retainer based upon their relative incomes. For instance, if you make $60,000 annually and your spouse makes $40,000 annually, you will pay 60% of the attorney for the child's initial retainer and future fees. The attorney for the children has a duty only to their clients (the children). Do not expect to have control over how the attorney for the children does their job, who the attorney meets with, or where, when, or how often they meet with the children just because you pay their fees. The attorney for the children is required to advocate their clients' stated desires unless they have evidence that doing so would place their clients at imminent risk of physical harm. Some attorneys for the children will do a lot of investigation to understand the situation, including interviewing teachers, doctors, third parties, etc., while others will only interview their clients. While most attorneys for the children will meet with both parents, some will not and you have no right to demand that they meet with you even if they have met with your spouse.

The matrimonial referee may ask you to sign a form consenting to the referee hearing and deciding all issues in your case. You may decline to sign this; however, if you do not sign, this does not necessarily mean someone else will hear your divorce case. Most often, this will mean that the matrimonial referee will still handle your divorce proceedings, but will have to report their recommendations to a judge who will make the ultimate decision. Therefore, you can expect the result to be the same whether you agree to the referee deciding your case or not as the judge will likely approve the recommendations of the referee as the referee will have a better understanding of the facts of your case. I do not recommend declining to sign the consent as you risk alienating the referee and receive no benefit.

You should be prepared for a possible award of attorney's fees. Courts are now required to award attorney's fees to be paid by the party who is considered the "moneyed" spouse. Most courts take this to mean that where there is more than a minor difference in incomes, they must award attorney's fees to the spouse whose earnings are lower. However, a court need not order the moneyed spouse to pay all of the other's fees. You may earn less than your spouse and have paid your attorney $2,500, but the court may only order the other party to contribute to part of your fees ($500, $1,000, or another amount). If you earn more than your spouse, be prepared for the possibility of needing to pay attorney's fees following your first court appearance.

At the conclusion of your first court date, you should have deadlines in place in order to keep your case moving. These deadlines may be for discovery (exchange of information related to divorce issues), appraisals of property, exchange of settlement proposals, or motions to be filed. Another court date should also be set (unless your case is settled at the first appearance).

It is possible to settle all issues at the first court appearance. If you reach a settlement, you may enter into a stipulation on the record. This means that your agreement will be verbally set forth in court and will be recorded, and the referee will ask you to confirm your understanding of the agreement and your understanding that this agreement will be permanent. Should you settle every issue and put the settlement on the record, you will not need to appear in court again.

Most cases are not resolved on the first appearance. In my next post, I will discuss the discovery process following the initial appearance.

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Duke Law Firm, P.C.
3407 Rochester Road
Lakeville, NY 14480

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