Guest post by Wendy Samuelson.
Just because you start a divorce action, does not necessarily mean that you will go to trial. If you settle the custody and financial issues of your case, there’s no need for a trial, and your divorce can be processed on papers alone without having to testify in court.
After you have retained an attorney, the summons for divorce will be served (or your spouse’s lawyer may accept service on behalf of your spouse.) The filing of the summons is the cut off date of all marital assets. This means that for every dollar you earn after the commencement date, it is considered your separate property. Note, if you choose to go to mediation before commencing the divorce action, you are allowing more marital assets to accumulate while you spend your time in mediation, which may be financially prejudicial to you if you are the monied spouse. In addition, once the summons is served, there is an automatic temporary restraining order in place (TRO), which prevents either party from transferring or encumbering assets except in the ordinary course of business, for usual living expenses and for legal fees. This TRO may be your best method of financial protection during negotiations in order to prevent a recalcitrant spouse from mortgaging properties or wastefully dissipating assets.
The first step after the summons is served is for your lawyer to request a preliminary conference. You will be assigned a judge to your case and a date to appear in court with your lawyer. The judge appointed will preside over the discovery process and your trial if you do not settle your case.
At the preliminary conference (PC), the lawyers for the parties will go into the judge’s chambers (a private room) and advise the judge what the issues of the case are about, whether certain issues can be resolved immediately (custody, visitation, interim support, maintenance, child support and equitable distribution), and what financial discovery needs to take place in order for the parties to fully understand the income and assets of the other. The judge will then issue a preliminary conference order with these discovery deadlines and any stipulations. After, the judge will come out on the bench, and address the parties, advising them to cooperate in the discovery process and to refrain from badmouthing the other parent in front of the children. You do not testify at this conference, and merely listen to the judge. You will be given a date to come back to court, a status conference, so that the judge can ensure that all discovery is moving along smoothly and both parties are complying with his orders.
Next, you will prepare a net worth statement, which is a sworn affidavit attesting to your assets, liabilities, income, and living expenses. The parties will exchange net worth statements. Your lawyer will make sure that the assets and liabilities reported by your spouse are supported by documentary proof such as bank statements, brokerage account statements, and the like. Some assets may need to be valued by an expert, such as real estate, pensions, and stock options. A forensic accountant may need to be employed to help determine the value of a spouse’s business or professional practice, or to determine the spouse’s true income and earning capacity, which value may vary greatly from what was reported on an owner’s tax returns.
The lawyer will request financial documents from your spouse via a demand for discovery and inspection. After the documents are reviewed, if documents were not in the other spouse’s possession, your lawyer may subpoena the documents from financial institutions or other non-parties.
Your lawyer may take your spouse or other witnesses’ deposition (questions under oath in front of a court reporter), which is usually held at the lawyer’s office. The only questions that can be asked at a deposition relate to the financial aspects of the divorce, such as the assets, debts, and income of a party. Questions regarding the details of an extramarital affairs or relating to custody of the children are off limits. (Note, though, a spouse can be asked if s/he spent money on paramour for gifts, vacations or other means of support, which is considered a wasteful dissipation of marital assets.)
Once all of the financial information is obtained and understood, you will appear for a certification conference in court, and the judge will give you a trial date, usually several months away.
Your lawyer should prepare a schedule of assets and liabilities of the marital estate, and advise you as to what a fair settlement would be in your matter. Often there is a “four way” conference, where the lawyers and the parties meet and attempt to negotiate a settlement of all or some of the issues. If the parties are at a standstill, a mediator may be helpful to facilitate a settlement. If that does not work, then you will begin preparing for trial with your lawyer, including going over your testimony and learning how to respond to cross-examination questions. Your lawyer should discuss with you the advantages and disadvantages of going to trial, including whether going to trial is a cost-effective route.
The best advantage to settling a case is that the matter is over quickly, you will save money on legal fees, you will not have to miss many days of work being on trial, and there is no appeal process. If you go to trial, and one of the parties does not like the court’s decision, that party can take an appeal and have a higher court determine whether the lower court abused its discretion and either vacate or modify the order. The appeal process can take a year or more, and can cost thousands of dollars in legal fees and record printing costs.
I have been practicing for more than 18 years exclusively in the field of matrimonial law, and during that time, 99% of my cases settled before or at trial. A good record? Yes. But, I am also able to explain to clients that it is in their best interest to take reasonable positions and understand the risks if they do not. I also try to help the understand that his/her decision should not be an emotional one, but strictly a business decision. Going to trial is not about “having your day in court” or “being right.” Trial should only be a last resort when the other party is being so unreasonable that you have nothing to lose by having the court decide the issue.
Wendy Samuelson, Esq. is a partner of Samuelson Hause & Samuelson, LLP, a boutique matrimonial law firm that represents high net worth clients in Long Island, Queens, Manhattan and Westchester in various complex matrimonial and family law matters. She is the author of the column, “Recent Legislation, Cases and Trends” for the New York Bar Association’s quarterly publication, The Family Law Review. She has authored several articles for various Continuing Legal Education programs and is a frequent lecturer at various law and accounting firms. She was recently selected as one of Long Island’s Ten Leaders in Matrimonial Law, and as one of the New York Metro Area’s Top Attorneys in Matrimonial Law by the New York Times’ Super Lawyers Section. She received an AV rating from Martindale-Hubbell, the highest possible rating in legal ability and ethical standards.
Wendy B. Samuelson, Esq.
Samuelson Hause & Samuelson, LLP
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