Anyone considering divorce might have a faulty impression of what happens in divorce court. TV shows and movies can make the process seem scary. In truth, the court process can provide certain protections and keep the divorce on schedule. Complex, high-net-worth divorce cases often benefit from litigation.
Wendy B. Samuelson, partner at Samuelson Hause PLLC, was recently featured on the podcast “Journey Beyond Divorce” to dispel some of the myths surrounding divorce court.
What Is Divorce Litigation?
The term “litigation” covers all aspects of the process, including the steps that lead up to a potential trial. A judge will oversee the divorce case from beginning to end. They will ensure that certain steps are completed within a certain timeframe.
To begin the process, the attorney for the plaintiff (person who starts the divorce) has a Summons and Complaint served on the other spouse (called the defendant). A process server may serve the defendant at home, work, or another location. A less adversarial approach is to have the documents served to the defendant’s attorney.
Once the divorce process is underway, the following happens:
- A temporary restraining order is placed on assets. Neither spouse can transfer any assets to other accounts or wastefully dissipate marital assets. Neither spouse can take out a loan against any asset. Health insurance must be maintained, and one spouse can’t remove the other from any life insurance policies. Accounts are not frozen, per se. Money can be used for reasonable living expenses and business transactions. Not adhering to the restraining order can result in contempt of court charges. Jail time and/or fines are possible.
- Both parties exchange net-worth statements. The statement includes a list of assets, liabilities, expenses, and income. The Statement of Net Worth also comprises business interests, taxes, and other financial information. The statement is an affidavit, so it is important that it is accurate and comprehensive.
- Both parties can request certain financial documents from the other. The attorneys for each spouse can request documentation to validate what was included in the Statement of Net Worth. Supporting documents can include bank statements, brokerage account statements, tax returns, and other paper and digital information. These financial documents can also be useful to identify red flags of hidden money or inappropriate transfers of marital assets.
- A preliminary conference with the court is scheduled. The preliminary conference is generally scheduled within the first 90 days of starting the action. The assigned judge oversees the calendar. The preliminary conference only lasts about 30 minutes. The judge or their law secretary meets with the attorneys in a conference room. The spouses remain in the courtroom. The preliminary conference provides the judge with an overview of the case. Based on the specifics of the case, the judge determines whether outside experts are needed. If a spouse believes a spouse is hiding money or needs clarity on the value of a business interest, a forensic accountant may be used. A psychologist and/or guardian ad litem might be needed if there are questions about child custody. A real estate professional could be needed to appraise a property. At the conclusion of the preliminary conference, the judge makes a few comments to the spouses waiting in the courtroom about the next steps.
- The judge sets deadlines for outstanding questions to be answered. The judge sets dates for financial discovery demands, depositions, and a status conference.
- The status conference is when both sides update the judge. Hopefully, the attorneys confirm that everything required from the preliminary conference has been completed and they are ready to proceed to trial. The judge schedules the trial, usually about three months from the status conference.
- Negotiation begins in full force. The bulk of the negotiations between the two parties happens in the three months between the status conference and the trial date. While a trial is always an option, the court wants the spouses to make every effort to negotiate a settlement with the help of their attorneys.
- A pre-trial conference is scheduled. The judge asks where things stand and whether a settlement is possible. The spouses do not have to continue to trial if they come to an agreement on the outstanding issues. Less than 10% of divorces go to trial.
The average divorce takes one year to be finalized.
How Does the Court Process Protect the Spouses?
The court process places guardrails and timelines that help move the case more quickly to settlement. Less time means fewer hours you will need to pay an attorney.
Forcing a divorce to adhere to timelines isn’t the only financial protection. When the plaintiff files for divorce, the restraining order is immediately effective. One spouse cannot cheat the other by draining an account or moving money from a joint account. Filing for divorce through the court also puts a stopping point on what is considered marital income. All income received after that date is generally considered separate property and not subject to equitable distribution.
Litigation can also encourage accurate and timely information. A spouse usually takes a request of a judge more seriously than an attorney’s inquiry.
Who Should Consider Divorce Litigation?
Litigation, mediation, and collaborative law are all good approaches. Which method works best depends on the couple and the divorce issues.
Litigation is generally a good option for the following situations:
- Parents don’t get along well enough to agree to joint custody
- There’s disagreement over what is marital property
- The value of a business is disputed
- One spouse believes another is hiding money
- There’s conflict about spousal support
Even in these circumstances, many couples reach an agreement during the litigation process. After the agreement is signed by both spouses, the Judgment of Divorce is submitted to the court. The provisions in the settlement are in full effect the day it is signed. The divorce is not final, and you cannot remarry, until the judge signs the agreement and files it with the county clerk. That process can take up to six months.
Picking the Right Lawyer for Divorce Litigation
Divorce isn’t only about an ending. Divorce is also about beginning again. A successful divorce allows people to move forward financially and emotionally.
Here are some tips for hiring the right attorney for you:
- Get a referral from a friend, a colleague, or a family member. They can offer personal insight about who has worked well for them or someone else they know.
- Look for an attorney with trial experience.
- You should feel comfortable and have a good rapport with the attorney.
- The attorney should be patient and answer all your questions.
- Pick an attorney with at least 15 years of experience in divorce litigation and negotiation.
- Research their court results.
At Samuelson Hause PLLC, we have more than 100 years of collective experience. Our team understands the emotions that surround any divorce. We guide our clients to make the best decisions for their future. Our extensive background in divorce litigation and negotiation can help a wide variety of clients, including high-profile and high-asset divorces.
Listen to the podcast by clicking here.
Schedule a consultation with one of our experienced attorneys to discuss your divorce options. Call us at (516) 584-4685 or submit our online form. We represent clients in Nassau, Suffolk, Queens, and Manhattan.
