After a divorce action is filed, you and your spouse and your attorneys will begin to communicate to try to settle issues in the divorce to the extent no conversation has occurred prior to the filing. These conversations include discussions regarding spousal support, property distribution, and child support, custody and parenting time (if you have children). You won’t go before a judge unless one of you is engaging in some action and the other one wants a judge to intervene, or you reach a stalemate and cannot come to an agreement on your divorce. In that event, a request for judicial intervention is filed along with either a motion or a request for a preliminary conference.
The first time you appear in court in your divorce can be intimidating particularly if the appearance results from a motion being filed. In many cases, however, it consists simply of meeting with the judge so he or she can determine what issues are in dispute and establish a timeline for the case. This meeting is called a preliminary conference.
At the preliminary conference, the judge will ask a series of questions, including the following:
- Have the parties agreed on the grounds of the divorce? Typically, both spouses want a no-fault divorce.
- If there are minor children, have the parties settled custody? If not, the court will give parents 30-60 days to work out an arrangement. If they fail to agree, the judge will appoint an attorney for the children. The attorney will talk with the parents and children and report back to the judge at the next appearance (along with the other attorneys) what efforts were made to resolve custody. If the parties still cannot settle, the judge will appoint a forensic mental health professional, typically someone who is a psychologist or psychiatrist, to evaluate the family and issue a report. It is generally best for parents to settle custody on their own rather than go through the forensic investigation process for various reasons.
- Are child and spousal support being paid? The spouse with the higher income should offer a reasonable amount based on the New York spousal and child support guidelines. If this is not done, the judge may order support if the lesser monied spouse requests it.
- Have the parties negotiated the division of their property? If not, the judge will give the parties 45 days to produce their financial records under a preliminary conference order for purposes of determining equitable distribution. Typically, three years of records are required.
- Will experts be needed to value assets? Valuation experts may be needed for real property, a business, pensions, jewelry or other assets.
At the conclusion of the conference, the judge will order the parties to appear in court in your divorce in 60-90 days to provide an update on the case. A trial date will also be set at the end of the preliminary conference although that is often extended because of delays in how the case proceeds.
While you may be nervous about appearing in court in your divorce for the first time, it’s important to understand that the purpose of a preliminary conference is to organize the case so issues can be resolved in a timely manner. The judge will be encouraging the parties to move the case forward quickly, and ideally, agree to a settlement to avoid trial. As a general rule, decisions about the substance of your case will not be made unless the circumstances require it and the issues have been fully briefed.
If you are considering divorce, please contact us to learn how we can help you achieve the best result in your matter.