Family Law

Originally posted on 2/26/2019, no content changes.

Only one to two percent of all divorces go to trial and will ultimately be decided by a Judge. The other ninety-eight percent will be resolved by agreement of the parties as a result of some pretrial procedure or by mediation, arbitration or settled as the trial is about to begin.

Therefore, more attention should be directed to pretrial proceedings and much less to the unlikely eventuality of a trial.

Pretrial applications to the Court are extremely important and useful. We are often asked what can be submitted and determined by the Court on a pretrial application. The easy (and generally very accurate) answer is virtually anything.

Common subjects which are submitted to the Court on pretrial applications are:

1. A temporary support or alimony arrangement.
2. A temporary custody or parenting plan arrangement.
3. The allocation and payment of marital bills and expenses.
4. An advance of counsel fees or litigation expenses.
5. The maintenance of insurance coverage.

In addition to this practical scope of pretrial applications, there are a number of applications which your attorney may want to make. For example:

1. To obtain additional documents or information which your spouse is not voluntarily producing.
2. To gain access to real estate or a business for the purpose of appraising it.
3. For the appointment of an independent appraiser.
4. For the production of medical or hospital records when appropriate and relevant.
5. For custody or parenting evaluations

As your case continues, there may be more sophisticated, evidential or technical reasons for pretrial applications. For example, your attorney may want to make an application to:

1. Bar your spouse's testimony or production of evidence on matters for which they have not produced discovery.
2. To limit or eliminate certain issues, such as whether or not pre-owned or inherited assets should be included or excluded from equitable distribution.
3. To predetermine evidential issues which may be important to either your side or the other side's presentation of the case.

For tactical reasons, your attorney may also want to file a pretrial application to begin to "set the tone" for the case. If your spouse has been uncooperative in discovery and necessitated an unnecessary expenditure of attorney or accountant's fees, your attorney may want to begin to relay that to the Court in support of an ultimate application for an advance of attorney's fees. If, by way of further example, your spouse is interfering with or failing to appear for parenting time, your attorney may want to call that to the attention of the Court because of the impact it will have on the ultimate custody determination.

In summary, more time and effort should be expended by you and your attorney on pretrial matters and much less time on trial strategy or preparation if you are interested in an expedient and successful resolution of your case.

For more information on this topic, please contact Megan Smith at msmith@offitkurman.com.