What is the procedure involved in your case?

So that you don’t spend valuable time worrying about procedure that your attorney spent seven years in school to learn, I am going to give you a crash course on the general procedure of a family law case. This may vary slightly from state to state, county to county, and judge to judge. Regardless, all cases generally follow this process.

The Complaint or Petition

Pretty much every case—whether divorce, child custody or child support—must start by filing an action, or a lawsuit. In most states the filing of an action starts by filing a “Complaint for ….” or a “Petition for ….”

For purposes of this discussion, we will refer to the Complaint or Petition as the “complaint”. The complaint identifies the parties. The complaint briefly states the basic facts of the case. The complaint states what plaintiff (the person bringing the complaint) is asking the court to give them and why the plaintiff feels that she is entitled to that requested relief.

Some attorneys like to file long, verbose complaints. It looks good to the client, and some attorneys feel that it is intimidating to the other side (attorneys also like to bill big dollars for these verbose complaints). Most states, however, are what is called “notice pleading” states. This means that the complaint must simply place the other side on notice to what the plaintiff is seeking and the basic facts that form the basis of the complaint.

Now don’t over simplify this process. There are some procedural pitfalls and traps that can cause you to lose your case if the complaint is done and/or brought incorrectly. That is where your attorney will help you.

But because the states that I practice in are notice pleading states, I prefer a concise complaint. I find that long, verbose complaints give the other side too much information without demanding the other side to go through the proper procedure (discovery) to obtain that information. Why help your opponent do their job? Also, I find that very rarely do long, verbose complaints intimidate the other side.

You also need an attorney at this stage in filling out the ancillary documents that go with the complaint. Sometimes a plaintiff can admit things in the ancillary documents that should not be admitted. Sometimes a court can refuse to take a filing if the ancillary documents are incomplete or incorrect. Therefore, even though these forms may seem simple and straightforward, I have often seen individuals who try to complete these documents with the aid of an attorney actually harm their own case.

Also, a case is not really underway until the other side is served. An attorney can assist you with arranging for proper service. If the opposing party is not properly served (and there are a myriad of complicated rules regarding “proper” service) then the case may be dismissed…and it may be dismissed after you have expended tremendous time and resources on the case. Of course, that can be a very costly mistake. Again, each state has very specific rules regarding service of process and proper venue. That is why it is important to let your attorney assist you with where to file the action and with how to serve the opposing party.

Venue

Venue refers to where the case is filed. Generally, a case must be filed in the county in which the opposing party resides, subject to a plethora of caveats and complicated rules. Law students often spend several months exploring the various rules related to venue, therefore it is impossible to cover all the rules (and exceptions to the rules) here. Just understand that you cannot simply file a case where you live because you live there. That said, there are ways that a shrewd attorney can sometimes manipulate venue and get the case in a location that is favorable to you.

James was a client of mine who needed to file a modification of child custody case against his ex-wife to obtain custody of their children. Unfortunately, after the divorce, she moved to a county whose judges would be extremely favorable to the mother. I knew that it was best for James to keep the case in his county rather than litigating the action in his ex-wife’s county, where venue was actually proper. I utilized a little-known loophole in the law and set a “procedural trap”. We calculated that the ex-wife being overly confident in her position would likely try to answer the complaint without an attorney. With that in mind, I filed a very simple complaint that appeared weak and un-intimidating. When the ex-wife answered pro se (without an attorney), she failed to raise venue as a defense or as an issue in her answer. When we later shifted gears and began aggressively litigating the case, the ex-wife hired an attorney, but it was too late. She was stuck litigating the case in James’ county. Therefore, by having an attorney who understood the rules and how to use them to his advantage, James prevailed on the case.

The Answer or Response

After a person is served, they have a period of time to respond to the complaint. In some states, that is twenty days. In some states, it is thirty days. Some states offer something akin to a grace period. The rules differ widely in each state as to how long a person has to respond, but everyone must respond.

The response, often called an “answer”, is very important. There are important technical defenses that must be raised in the answer, or those defenses may be forever waived. Therefore, if a party fails to raise a technical defense in the answer, then that defense is waived and cannot be used in the future. That is why it is important to have an attorney respond to the complaint on your behalf.

Marcella was a client of mine whose eleven-year-old child went to visit the father (Marcella’s ex-husband) during the child’s summer break. When the child arrived at father’s house, he and his current wife began manipulating the child into “electing” (which is the child telling a court that he/she choses to live with a particular parent) to reside with the father on a permanent basis. Because the father filed his modification action near the end of his summer visitation period, I knew that this father was likely to keep the child beyond the father’s summer visitation period. Rather than answering immediately, I waited a couple of weeks to file Marcella’s answer. When the father did as I expected, I raised a technical defense that prohibits a party from maintaining an action for custody when that party is holding the child beyond that party’s visitation period. By raising this technical defense, the father was forced to return the child to Marcella, otherwise the case dismissed on technical, statutory grounds. When the child went back to Marcella, she was able to talk with the child and get past the father’s manipulation. The child, of course, changed his election and opted to continue residing with Marcella. We won that case by shrewdly and properly raising a technical defense in the answer. Had Marcella failed to raise that technicality, the child would have stayed with the father and remained under the father’s manipulative influence...and Marcella would have likely lost the case.

If you are defendant a case, if you are the one who has been sued, the answer is a very important step in the process. Make sure to tell your attorney exactly how (by whom) and when you were served. Your attorney will ensure that service was properly perfected, that the answer is timely filed, and that the proper defenses are raised.

Mandatory Disclosures/Discovery

After the answer is filed, the discovery period begins. This is the period of time in which you must submit to questions from the other side. This is also the time that you get to force the other party to submit to probing questions as well. This may come in the form of requests that a party produce specified documents. This may come in the form of questions that a party must answer in writing, called “interrogatories”. A party may have to submit to a deposition, which is questioning under oath, in person, and in front of a court report who types counsel’s questions and the party’s responses. These procedures may be utilized by your lawyer, and the opposing party may utilize these procedures as well. Often, if one party utilizes a certain procedure, generally the other party does the same.

When you are served a request for production of documents (also called “notice to produce”), interrogatories, or other written questions, the law requires a written response for each numbered request or paragraph. Whether you are responding to interrogatories or requests for production of documents, a written response to each numbered request or paragraph is required. It will save time and attorney fees for you to respond in a Microsoft Word ® document that your attorney can use in preparing the formal responses.

Many of the requests made by opposing counsel are subject to a legal objection and may not require your response at that time. Nonetheless, you should respond fully to each request, and let your attorney raise those objections that are appropriate and withhold the documents and/or responses as is appropriate. It is important that you respond within about seven days in order to give your attorney time to draft your formal responses.

You are generally NOT required to do the following:

  • You are generally not required to request documents from third-parties that are not in your possession…for example, if you can easily obtain bank statements online, then do so. If you can easily get them from your bank, then do so. If you cannot readily get the documents without expending tremendous resources and jumping through significant hoops, then you do not have to spend money obtaining copies from your bank.
  • You are not required to speculate, guess, or approximate when responding. If you don’t have the information necessary to respond to a request, or you don’t know for fairly certain the information requested, then generally you can simply respond by saying, “I lack sufficient information to form a complete and accurate response to this request.”
  • You are not required to disclose the contents of conversations that you have had with your attorney, or other past attorneys.
  • Obviously, if a request does not apply to you, you can respond by simply stating “N/A”.

If you are responding to Requests for Production of Documents, your response to each numbered request may generally be something like one of the following:

  • “All documents in my possession that are responsive to this request are attached hereto.” Then list those documents by category, i.e. “2010-2105 Bank of America statements (Acct. # 1234), Paycheck Stubs from January 1, 2018 to present, Closing documents on 1234 Hill Street…”
  • Of course, if the request does not apply to you, such as you are asked to produce documents that do not and never existed, then you may simply respond by saying, “Non-applicable,”
  • If you do not have the requested documents in your possession, and you cannot readily place your hands on these documents (see above), then you may respond by saying, “Documents responsive to this request are not in my possession.”

What you must generally understand is that failure to communicate your responses to your attorney within the time allowed may result in a waiver of important legal objections and will necessitate your attorney giving valuable information to the opposing party that perhaps could have otherwise been withheld. Further, failure to respond to the requests within the requisite time period may result in severe court sanctions, including dismissal of your case or your defenses, exclusion of the evidence, paying the other side’s attorney fees, and/or eventual incarceration.

Discovery is the tedious and time-consuming part of the case. To streamline this process and to save on attorney fees, refer to chapter above relating to mandatory disclosures. Have those documents identified in that chapter ready to send to your attorney as soon as they are requested. You can also assist your attorney by emailing specific questions, the answers to which you believe would be helpful to your case. Your attorney may not be able to use all these questions, but I always welcome my client’s input on questions to ask the other side.

Mediation

Increasingly, in most states, all domestic relations cases—by standing court order—must be mediated before a hearing can be scheduled. Thus, the parties are required to at least attempt mediation.

Mediation is an informal process wherein the parties meet with an impartial third-party, called “a neutral” or, “mediator”, and attempt to arrive at a resolution of the case. A few things that you should know about mediation are as follows:

  • The case may be settled in part or in whole. It is permissible to reach a partial settlement of only some of the issues of the case, or you may reach a full settlement of all issues in the case. You can reach a temporary agreement that dictates how the parties will conduct themselves during the pendency of the case, or you may reach a permanent settlement that completely resolves the case.
  • The parties may or may not reach an agreement. You are not required to reach an agreement, and you cannot force the other side to agree to anything either.
  • The mediator cannot give legal advice. The neutral is neutral. While the mediator may be an attorney, the mediator cannot represent you as your lawyer or give you legal advice and direction.
  • The mediator cannot force a settlement. The parties are free to settle, or a party may opt not to settle.
  • Your attorney will advise you to be cautious regarding what you say. You don’t want to spill the proverbial beans or give away the proverbial farm. Nevertheless, statements made in mediation are generally not later admissible in court. The law seeks to encourage free communication amongst the parties during mediation in order to facilitate a settlement.
  • The mediator cannot be subpoenaed to testify in court. Mediation is a confidential process, and communications with the neutral are generally not admissible in court.
  • The mediator will require payment from you at the mediation. Mediators, like all individuals, don’t work for free. Be prepared to pay at the mediation session.
  • The parties will generally share equally the cost of mediation. It is custom that the parties split the cost of mediation.

During the mediation process you will usually have much time to talk with your attorney. In the two to three hours that you are there, the mediator will meet privately with each party and his/her attorney outside the presence of the opposing party and his/her attorney. When the mediator is meeting with the opposing party, you will have much time to talk privately with your attorney and to discuss settlement options, the other side’s position, and to address any questions that you may have.

In terms of what to expect from mediation, you generally start in a small conference room with the mediator, your attorney, the opposing party, and the opposing party’s attorney. The plaintiff (the one who actually filed the case) begins by stating his/her position on the case. Then the other party states his/her position on the case. Your attorney will generally talk for you, so you will not have to say anything if you don’t wish to. You don’t have to make any settlement offers until you have had time to discuss things privately with your attorney and/or the mediator.

After the parties state their position on the case, the mediator will then “caucus”, meeting with each party and his/her counsel privately, confidentially, separately and apart from the other party. Nothing you say in mediation can be used against you in court, and you can instruct the mediator not to repeat to the other party anything that you don’t want the other party to know.

In caucus, the parties usually make settlement offers for the mediator to take to the other party. The mediator will go back and forth, meeting with the parties separately until a settlement is reached, or until the parties are at an impasse, at which time mediation is concluded. Mediation ends when the parties sign off on a settlement agreement that is put in writing in the mediation session, or the mediation will end upon the parties declaring an impasse (which means that the parties are unable to settle). The only thing that the judge in your case will ever hear or know about your mediation is whether or not a settlement agreement was reached. Judges can receive no further information regarding mediation, or any information regarding what went on during mediation.

Because of my reputation in the community, about 80% of my cases settle in mediation. Usually, if the other side is represented by counsel, that attorney knows that I am fully aware of what the judge is likely to do in the case. Other lawyers know that if they offer my client something that is far outside the parameters of what the judge in the case is likely to order at a trial, then I will advise my client to decline the offer and to proceed to trial. Other lawyers also know that I am fully prepared to go to trial if we don’t reach a resolution, and that I have a very good success rate. That is why if you hire a good, reputable attorney, it can save you time and money in the long run. It is plain and simple—an attorney’s good reputation most often helps to settle cases.

That said, I always tell clients that a settlement usually involves less than your best day in court. If it is your desire to settle without going to trial, then you have to be prepared to compromise. Just as I would advise against my client simply accepting her worst case scenario, the other side will likely not accept their worst-case scenario either. Any settlement will likely involve both parties giving up something of value in order to gain something in return.

Temporary Hearing

Sometimes a party may seek a temporary hearing to address issues regarding how the parties should conduct themselves while the case is pending and to address temporary issues before the judge has an opportunity to hear the case and to make a final ruling on the case. In the temporary hearing, the judge will usually address parenting time and parental responsibility that each party will have while the case is pending. The judge will also discuss issues of child support and spousal support usually for the purpose of maintaining the status quo as much as possible while the case is pending. Sometimes, the judge will address issues such as temporary possession of the marital residence, who will pay current bills and debt and other miscellaneous issues that have arisen since separation.

You should discuss with your lawyer whether a temporary hearing is strategically advantageous in your case. Sometimes, when I am representing the wife, I will recommend a temporary hearing because the wife is often in need of temporary support. On the other hand, I usually avoid temporary hearings when I am representing the husband. I do this because if the husband is the primary breadwinner in the family, the court will generally require more of him in the temporary hearing than what a court is willing to order in a final hearing. Therefore, depending on the individual circumstances, a temporary hearing may not always be the best strategic option. A temporary hearing is often costly as well. Remember that for every hour of court, there is generally three hours of preparation time involved. I generally tell clients that a temporary hearing will require at least three to four hours of attorney time. So, budget accordingly.

Also, while everyone wants a court to rule quickly on a case, as the old adage goes, sometimes “caution is the better part of valor”. It is better to be prepared rather than going half-cocked into a hearing and being forced to show your cards before you are ready. Just listen to your attorney and don’t get stuck on the desire for a quick resolution. Often the right and best resolution for you is not necessarily the quickest one.

Also, be aware that in some jurisdictions a temporary hearing takes months to schedule. In other jurisdictions, mediation is required before a temporary hearing can be scheduled. Some judges will not do temporary hearings on modification cases, and other judges treat temporary hearings as informal mediation-style hearings. Your attorney should know the jurisdiction and know the judge. That is the best way to ensure that you choose the strategy that is right for you and your case.

Trial

In a family law context, the goings on of trial will vary widely from jurisdiction to jurisdiction and from judge to judge. Therefore, it is impossible to address how your trial will go in a handbook on family law issues—that would require a library of books to cover. Also, trial is like the Broadway show that happens only after weeks of preparation and hours of rehearsal. That said, the conduct of trial is largely dependent upon what the other side says and does, so unlike a Broadway play, much of trial will be unscripted and impromptu.

Know this, the trial is not like what you see on television and in the movies. Most of the time, trial is relatively boring and mundane compared to what you are expecting. In fact, if it does get exciting, that usually means that something went wrong for you, or hopefully it was that something went wrong for the other side.

I recently tried a case for Richard, who was seeking custody of his elementary school-aged son. The mother claimed to be the primary care giver of the child since birth, but anticipating this to be her argument, I subpoenaed her work records to show that she was at work all day during the week. I also obtained copies of her Facebook posts to show that she was out partying most weekends. Also, my client wisely started keeping a log of the days and times that he had the child. So, we had months of evidence showing that she had voluntarily let Richard have the child most weekends.

The truth was that she wanted “primary custody” primarily for Richard’s child support. In fact, while she claimed to have “after school care expenses” (which served to increase the amount of support that she was seeking), she never claimed the childcare tax credit on her taxes. Why? Because her mother, sister or other relatives would watch the child after school. Basically, this mother wanted the court to believe that Richard should not have shared custody because she was the one “who always cared for the child.” That was an exciting hearing when I caught her in lie after lie and showed that Richard did as much or more to care for the child than she did. But know this, something had definitely gone wrong for this mother and her attorney, who simply took his client at her word. About twenty minutes into my cross examination of this mother, her attorney was asking for a recess!

But trials are not always that exciting. The important thing is to get your evidence before the judge. Perhaps the best way to get this done is for you to provide your attorney with an email in bullet point form that briefly states every fact that you believe helps your case. I often ask a client to do this at least four weeks prior to trial not only because it helps me know what is important to the client, but it also helps the client organize his/her thoughts and prepare for trial. Even when your attorney is good, your attorney has not lived your life and does not know the facts as well as you know the facts. Your attorney’s job is get the facts in front of the judge in a way that permits the judge to consider these facts. This is called the presentation of admissible evidence through proper trial procedure.

Keep in mind that you may have the best facts in the world, but the judge may never hear those facts or see that evidence (i.e. documents, photos, recordings, etc.) unless that evidence is presented in an admissible form and through an admissible process. I often tell clients that unfortunately the law is not about truth and justice, the law is about evidence and procedure. By providing a list of important facts to your attorney weeks in advance of trial, your attorney can ensure that he/she does what is necessary to ensure that this evidence gets admitted in trial for the judge’s consideration. So, do not skip this very important step in helping your attorney help you at trial.

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