Once a divorce or custody case starts in Family Court there is usually a process in court. Unless the parties agree and filing the papers is just a formality, every case is set to proceed down the same path. The objective of that path is to facilitate the process by identifying issues, resolving issues, and getting a final determination. Each stage of the case has a specific goal and serves an exact purpose. To litigants, this process can seem confusing, unnecessary, and at times, prejudicial. But the process can be used to your advantage as a litigant if you would keep several things in mind. Strategy entails gathering information whenever and however you can, the court appearances are ideal in that sense.

 

The Initial Appearance

The Initial Conference itself is usually a brief meeting. Although all parties are required to appear, the way you appear is up to the court (via phone, video, or in-person.)

A final determination of anything asked for in the petition or motion is unlikely unless the parties agree to it. However, there are instances where temporary orders are issued depending on the parties’ requests, the immediate need, etc.

The Initial Conference is your first opportunity to gauge what the “real” issues of the case are. When crafting your strategic game plan, one of the principal elements is that you gain an understanding of where the opposing party stands. What this means, is that you need to know what their strengths and weaknesses are. You might think you know what they are, but you will get confirmation at the initial conference. The judge will want to know what the issues are and will more than likely, give some hints as to which issues are “real” issues.

In addition, the Initial Conference is your chance to familiarize yourself with the court process, the key players, and the judge’s demeanor. These are all key elements to focus on when creating your game plan too. Your case is not just about the parties, the law, and/or the lawyers. There is an entire process that and that entire process has a significant impact on the outcome of your case.

And last, you are giving the court to make its impression of you. You get to determine that. So many people are intimidated by the court process when you get to dictate how it goes. You must learn to be calm, focused, and prepared as you only get one chance to make a first impression.

 

How to Prepare for the Initial Conference

Preparing for the Initial Conference efficiently is important. However, being intentional in how you prepare is critical to the strategy for your case. In other words, plot every step or tactic you intend to use at the actual conference. Review the opposing party’s petition or motion to look for key things to focus on. You want to focus on these specific things to watch for credibility in statements, to check for consistency throughout the process, and to make notes for Discovery requests.

Next, you want to do as much research as you can before the actual conference. Research the laws, the procedural rules, the attorneys, and the judge. You might not find exactly what you expect, but you should look to see what’s out there.

And last, you should have a set of questions in your mind. You might get a chance to ask specific questions and that’s fine. But you should pay attention because although your questions might be unasked, you might still get answers to them.

 

After the Initial Conference

Once the conference is over, you should have a much clearer picture of what you need to do next. You should feel confident, determined, and empowered, not defeated. Remember, this is your opportunity to determine the direction you want your case to go in. Not let the antics of the opposing party distract or discourage you.

You should be able to fill in some key parts of your game plan.

 

In Conclusion

Too many litigants overlook the opportunities to take control of their case presented in the Initial Conference. They allow their emotions to take over and lose sight as a result. Every interaction, encounter, etc. is an opportunity to gain leverage. Take advantage of it.

 

My new Pro Se Family Court Membership Program is the perfect solution to your custody or divorce situation.  Having a solid game plan that focuses on using strategy can make or break your case.  Interested in the details? Check here.

What is DiscoveryDiscovery in divorce and child custody in divorce and child custody?

Discovery in divorce and child custody matter is the legal process where pertinent information, relevant items and material facts are exchanged between opposing parties upon request.  Discovery is used in litigated cases of any type. It applies to civil, criminal and family law cases, just to name a few. However, the extent to which types of discovery is used may vary from case to case.

Discovery in divorce and child custody cases has a unique process and methods used depends on the issues. Whether the case is on the trial track, as opposed to settlement track, matters as well.  The more contentious the issues, the less likely the case will be prepped for settlement. This means the case will require more extensive discovery so that it is “trial ready”.  For example, in a divorce where the main issue is division of the marital home but there is a question of who paid the down-payment,  a Notice to Produce and/or Notice to Admit are appropriate.  However, it is different where one of the parties is alleging that the other party is hiding assets.  In those cases, a more extensive discovery process may be warranted like depositions.


Should You File First in your Custody or Divorce Matter?


Type of Discovery:

There are 5 major methods of discovery you and your lawyer can use in your divorce or child custody case.

Interrogatories:   these are written questions that each party request to be answered by the other.  The party must answer truthfully under the penalty of perjury. These answers can be used as evidence at trial.  They usually ask for things like, the identity of expert and lay witnesses, a brief summary of their intended testimony and the exhibits they will use. There is usually a 30-day time limit for the responses. Also, some states limit the number of questions that can be asked in interrogatories.   They can be pre-printed forms, generic, or can be tailored by asking specific questions relevant to your case.

Requests for Admissions:  this is a series of short sentences that the other party must respond to.  The other party must admit or deny facts or the authenticity of particular documents.  This method is often necessary before trial because it minimizes the need to call witnesses to authenticate evidence at trial.  This reduces the length of trial because it reduces the number of unresolved issues beforehand.  Requests for admissions works best when contested factual disputes do not involve subjective opinions.

The key is to frame questions in a way that narrows down the possibilities as much as possible.  The questions should leave no room for anything more than a “yes” or “no” response. For example, “Do you admit that you visited your parents home on July 1, 2010”?. As opposed to “Do you admit that when you to see your parents back in July 2010 that it was to get their help”?.  See the difference in the potential responses, the latter may need more of an explanation than a simple “yes” or “no”.

Requests for Production or Requests to Produce:  these allow a party to request the other party produce specific documents relevant to your divorce or custody case.  The request the production of items either in the other party’s  possession or that party has “custody or control” over.  They refer to any type of statements of any party; photos, videos, audios, etc.; financial documents; etc.  The party in possession can object to the request if they deem them to be overly broad or improper.  If there are no objections, the items must be produced for copying if the other party has them.  In situations where the party only has “custody or control”, then a signed release is produced.

Depositions:  this method gives the parties the opportunity to question any party or witness, in person and under oath. Their testimony can be used in court to either refresh the deposing witness’ memory or to impeach them.  They usually take place in an attorneys office, but can be conducted on any location agreed upon by all parties.  The deposing parties are sworn in and a court reporter is present to take notes.  This method is very expensive and can drag on the divorce or child custody longer. Nonetheless, it can be a necessary tool where there are several contested issues, like custody.

Subpoenas:  technically not considered discovery but they are another means to acquire information relevant to divorce or child custody matters.   This method is very simple and straightforward, thus often used as an alternative or follow up to other failed discovery attempts.  It is ordered by the court so failure to respond to subpoenas can result in a contempt charge by the court, which may mean civil fines and criminal charges.  Subpoenas can order you to show up to court, to produce documents or show up to court with documents.  Anybody who has information or items related to the case can be served with a subpoena.

How to use discovery in divorce or child custody?

Most people do not expect to spend tons of money or time in preparing their divorce or child custody case for trial.  No matter how contentious, it is not unreasonable to have limits with respect to your family law case.  You can expect your case be resolved without dragging it out using discovery methods.  However, when the issues are so complicated that there seems to be no end in sight utilizing all the discovery methods available is necessary.

Furthermore, the level of cooperation of both sides can delay/prolong the process.  The tedious process can be a tedious one for all parties, since gathering information can take time and effort.  In addition, the extent to which both sides respond truthfully, fully and timely can also determine how the discovery process is used.   Discovery is typically used to obtain bank documents, financial statements, tax records, real estate deeds, business records, medical/mental health records, etc. in divorce or child custody matters.

Scenarios for use of discovery

Divorce cases where the issue is merely a distribution of identifiable assets, discovery use may be limited to pre-printed forms that is part of the attorney’s customary practice in divorce.  In other words, the discovery process may be routine and limited to requests to produce.

In divorce actions where the issue is a division of assets that need identifying,  searched for and located, valuated, etc. then the discovery process would be much more extensive.   The use of requests to produce, interrogatories, subpoenas and even depositions may be inevitable.  These methods can be used together, or individually in instances where use of one method failed to produce desired results.  So for instance, a party may use requests to produce to get copies of bank statements of hidden assets.  If the other party denies any hidden assets in their responses then other methods should be used.  Denial or failure to answer justifies using depositions as an alternative.

In child custody cases, utilizing requests to produce and interrogatories may be the way to get evidence relevant to the case.  Specifically in cases where joint or sole custody is disputed, various methods of discovery may be best. Discovery would typically focus on proof of alcohol or drug abuse of either party, domestic violence or anything related to either party being “fit” or “unfit”.  And although the use of depositions is not typically used to prove “the best interests of the child”, it is a very helpful method to establish them.

Subpoenas can be used in any of these scenarios.  In fact, they probably should be used before resorting to more expensive methods like depositions.  Requests for admissions are most useful when the divorce or child custody case is most certain to go to trial.

It is important that you understand the different methods of discovery and ways to use them.  Although your attorney may opt to use a method, a combination of methods or none at all, it is important to have an idea of what is available and ways to implement them.

By Tracey Bee, The Divorce Solutionist