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Decades Of Litigation Experience

The Anatomy of a Divorce Action

by | Dec 21, 2021 | Firm News |

By: Michele Olsen, M.A., M.S.W., Esq.

The most common questions asked to matrimonial attorneys by both potential and current clients are: “how much will my divorce cost and how long will it take?” Unfortunately, the answer to both these questions are dependent on numerous factors and are often fluid. Some factors are beyond the control of both the attorneys and the litigants, and other factors are wholly dependent on the conduct of the parties. Whatever the factors or circumstances, one thing is certain…….most litigants want his/her divorce to be as quick and inexpensive as possible, and one is inevitably tied to the other.

Other than the unfortunate and unexpected delays in all legal actions due to the pandemic, a matrimonial action proceeds in a particular procedural chronology which begins with the commencement of the action and ends with a Stipulation of Settlement or a trial or a discontinuance. In it simplest form, a divorce will proceed as follows: if an action proceeds to litigation, a party can expect a preliminary court conference where both sides inform the court of the issues, any temporary or final resolutions, the need for experts to value any assets or the fitness of each parent, and the appointment of an Attorney for the Child(ren) if child custody is contested. Thereafter, status conferences will be held about every two months and allows the court to remain involved and updated as to the progression of the action and may provide an opportunity for the court to assist in a resolution about a particular issue(s). If the action is particularly contentious, additional court conferences and/or motion practice may be necessary. In between the court conferences, the discovery process will proceed, which will require extensive financial document production and depositions. Once discovery is completed, the court will schedule a certification conference wherein both sides will represent that all discovery is complete, and the case can be certified for trial. If the parties are fortunate, settlement negotiations will be attempted throughout the process. At this point, the parties will either expedite their settlement efforts or begin the arduous and costly task of trial preparation.

While the recitation above may appear to be straightforward, there are often procedural hiccups which may occur, including but not limited to: adjournments, judiciary changes, dilatory strategies employed by a party, issues with document production (particularly when it is necessary to obtain documents that are no longer available) and the initiation of ancillary proceedings in Family Court (ir – Orders of Protection) or the involvement of Child Protective Services. All such occurrences serve to cause either minimal or significant delays in a matrimonial resolution. Some are within a litigant’s control, and some are not.

More often than not, the manner and speed upon which this process occurs is, in large part, dependent on the conduct of the parties. This is not to say that the parties are solely responsible for the continuation of the divorce action, but….it is a significant factor. Although the Courts are mandated to proceed within certain deadlines, these timeframes are often extended, which can be a blessing or a curse depending on which side you are on. In this regard, it is always in a litigant’s best interest to ensure that no matter what the other side is doing, make sure that you meet any necessary deadline. Courts are not fond of hearing that you did not do something because the other side did not either. In fact, if you remain “on the side of the angels,” it is easier for your attorney to ask the Court to take action regarding the other side’s non-compliance. This in and of itself may move the action along despite any dilatory conduct and strategies employed by the other party.

The bottom line is that it is important to understand the basic anatomy of a divorce action; to temper your expectations accordingly and do all you can to assist in the speedy resolution of the action.