Contested Process

Contested DivorceWhile most contested divorces do settle before trial, the process leading up to a trial is the same for all contested matters.   As a client of the law office of Ross S. Gelber, Esq., your attorney will guide you step-by-step through this process.  It is important that as a client you are fully informed at each stage to make sure your rights are protected and therefore, you should understand how the case will proceed:

  1. The Summons: A divorce action is commenced when a Plaintiff files a Summons with the clerk of the county in which he/she resides.  The Summons simply states the ground the divorce is based upon and a statement of the relief requested at the end of the divorce.  Within 120 days of the filing of said Summons it must be personally served on the Defendant-spouse.  The Defendant has 20 days to serve a Notice of Appearance or risk being in default.
  2.  Automatic Orders: Along with the filing of the Summons is a notice of Automatic Orders.  This is an automatic restraint on the parties from transferring, selling, encumbering, removing or disposing of marital property.  This allows the Court to get a “snapshot” of the parties’ financial situation at the time the divorce is commenced.
  3.  The Complaint: The Complaint is a list of the allegations made by the Plaintiff giving cause to the ground for divorce.   Additionally, like the Summons, there will be a statement of the relief requested (i.e. maintenance, custody, child support, etc.) by the Plaintiff.
  4. The Answer: The Answer is the Defendant’s opportunity to either admit or deny the allegations listed in the Complaint.  The Defendant may opt to file a Counterclaim – His or her own claim for a divorce.
  5. Preliminary Conference: Within 45 days of the filing of a Request for Judicial Intervention (RJI) a conference date will be scheduled at the Expedited Matrimonial Part.  At this conference, which the parties must attend, the Judge or Court Referee will first hear of the fact surrounding the case.  The Court will try to resolve any issues it can and ascertain what information is still needed to help resolve any other outstanding issues.   If there are any issues relating to the children of the marriage, the Court may appoint an Attorney for the Child to protect the child’s rights.
  6. Discovery: Discovery is usually the longest part of a divorce action.  Discovery is where all information is gathered to try to facilitate a settlement between the parties.  Each party is required to provide a sworn Statement of Net Worth also called a Financial Disclosure Affidavit.  During Discovery one or both parties may be asked to undergo a deposition.  Depositions are fact-finding tools where the other attorney may ask the opposing spouse questions while under oath.
  7. Motions: Motions are an important part of trial practice and can be done at any time after the filing of the Summons.  Motions are when a party is asking the Court for certain relief.  It is common for a motion to be brought at the onset of a divorce case to ask for temporary relief such as temporary maintenance or custody.
  8. Pretrial Conference: Once Discovery is complete and both parties feel they have all the information necessary to move forward, the Court will schedule a pretrial conference.  At said conference, the Court will attempt to settle all unresolved issues.
  9. Trial:  If any issue is left unresolved through negotiation the Court will schedule a trial date.  At trial both parties have the opportunity to present witness testimony and exhibits relating to the unresolved issues.  At the close of trial the Judge will render a decision on all outstanding issues.

 

For more information please contact Ross S. Gelber at 716-632-5919 or at rgelber@rossgelberlaw.com.