Unfortunately, not all cases can be resolved on an uncontested basis. Twenty years ago, when I completed my clerkship in the Family Part and began practicing, a little more than 15% of cases went to trial. Today, it’s less than 2%. That means there is a better than 97% chance a case will resolve without the tremendous emotional and financial cost of a trial. Just because a case begins on a contested basis does not mean that a trial will be required.
If your case is contested, you will be aggressively represented at every stage of the process outlined below. Proper discovery will be conducted to establish all the facts necessary to prevail. If your case doesn’t resolve after the several mandatory levels of mediation that will be required, a trial will be conducted.
Over the past 20 years, I have tried cases taking anywhere from 1/2 a day to 17 days in court.
The contested divorce process follows this outline. The time estimations are approximate and vary based on the county, the judge, and the court’s calendar congestion. Divorces can proceed to a trial in under a year or can take two years. The record is three years between filing a complaint and a trial.
This general outline also doesn’t take into account the possibility of pretrial motion practice (for example, an application to set temporary support, custody, or gain access to marital assets or credit to fund the litigation).
Stage 1 – A complaint for divorce (or limited divorce or annulment) and other required documents are drafted and filed with the court. These documents begin the process and result in a docket number being issued. The complaint is then provided to your spouse with an acknowledgment of service, indicating they have received it. If they refuse to sign, service via the sheriff’s department or a private process server is accomplished.
Stage 3 – Discovery is the process by which both parties exchange necessary information. For instance, if one spouse handles the financial matters of the family, then he or she will likely be required to produce bank and credit card statements, a listing of assets, business records, and any other relevant information. Subpoenas (obtaining information directly from a source) may also be served (or sometimes are served instead of asking the other party, depending on what’s appropriate). In rare cases, the parties may be required to attend depositions, where a court reporter takes testimony under oath as to the issues.
Stage 5- Post-ESP Economic Mediation If the issues are not resolved at the early settlement panel, we will be required to select an economic mediator. Where an ESP Panel will generally give a brief (about 30-45 minutes) review of your case and meet with us for 20-30 minutes, an economic mediator goes into a lot…
Stage 7 – Trial A trial is the final step in the divorce process. As indicated, less than 3% of all divorce cases go all the way to a trial. A trial is time consuming and therefore usually very expensive. You will need to prepare your testimony and evidence, and, if experts were involved, to…
Stage 2 – Case Management Conference Once the Complaint for Divorce has been docket in by the court the court will then set a date for a case management conference where the court will assess what issues of exist, fix deadlines for the exchange of documents, determine if any experts will be required and how they will be paid for (e.g., one spouse advancing the cost subject to a credit, or cost divided between the parties).
During the discovery phase, settlement discussions to resolve the divorce case will be ongoing. If, however, your case is not settled by a date scheduled by the court, we will be required to appear before the “early settlement panel” (ESP). The panel consists of two attorneys with at least 10 years experience who are asked by the court to volunteer several times per year. A summary of the issues is presented (called an ESP Statement). The Panel will discuss your issues and provide recommendations as to a resolution. If both parties accept the recommendation, a judge will issue a divorce before leaving the courthouse that day. I’ve served as an ESP Panelist for over a decade. The vast majority of cases will resolve at ESP. If the case does not resolve, the court will meet with the attorneys, discuss the issues, check on the status of any still-outstanding discovery and expert reports, refer us to another, deeper level of mediation, and set dates for an Intensive Settlement Conference with court and set initial trial dates.
Contested Divorce Stage 6 Intensive Settlement Conference(s) (Month 12) If your divorce cannot be settled in the economic mediation phase, the court will ask both parties and their attorneys to return to court for an a settlement conference (usually lasting all day). The primary goal of an intensive settlement conference is to prevent your case…