Divorce and Family Law Litigation
If initial negotiations fail, it may be necessary to begin a contested case in superior court. The following steps are necessary before beginning litigation:
1. Think carefully about what you are trying to achieve. What outcome would you like to see happen? What outcome would you accept? Can you realistically achieve a better outcome than the other party is offering in settlement? Is it worth the additional time, money, and aggravation of litigation?
2. Commit to the effort required for successful litigation. Litigation requires a lot of work. Your attorney will need a lot of your time and effort for successful litigation.
3. Be prepared for the cost of litigation. Litigation requires a lot of your attorney’s time. Your attorney will certainly expect to be paid for that time. You must be willing and able to timely pay both your attorney’s initial retainer and your attorney’s additional fees as they become due. If you do not do this it can cause a breakdown in the middle of the litigation as your attorney may not be willing to continue representing you. Litigation has a way of becoming more difficult and contested than you anticipated.
Filing the Complaint
Family law litigation is begun by filing a complaint with the superior court. The party filing the complaint is known as the plaintiff. The complaint lists the plaintiff’s allegations in numbered paragraphs. The complaint also lists the actions the plaintiff wants the court to perform, such a grant a divorce, determine custody of children, divide marital property, etc.
Setting the Date for Temporary Relief
In Brunswick and in most superior courts in Georgia, a hearing on any temporary relief requested in the complaint will often be set at the time the complaint is filed. Temporary relief will involve issues that cannot wait, such as child custody, visitation, and child support. Often issues regarding the children need to be stabilized quickly when the parties cannot reach agreement. The temporary hearing will be set in quickly, usually about 45 days from the date the complaint is filed. A notice called a “Rule Nisi” will be issued by the court, stating the date and time of the temporary hearing. The Rule Nisi, together with the complaint and all other documents filed with the complaint, will then be served on the other party.
An Answer is Filed
The party served with the complaint will then file an answer. The party responding to the complaint is known as the defendant. The answer will admit or deny the allegations in each of the complaint’s numbered paragraphs. If the defendant also wants to court to do sometime on their behalf, they can file a counterclaim. Just like a complaint, the counterclaim will list allegations and request specific action from the court. The plaintiff will then file an answer to the defendant’s counterclaim. If the defendant fails to file an answer, the court will simply proceed with the case without the participation of the defendant. Failure to participant in the divorce litigation can be disastrous for the defendant.
The Hearing on Temporary Custody, Child Support, Visitation, and Alimony
The temporary hearing will last about two hours and will be about setting temporary custody and support arrangements. Since the temporary hearing comes up quickly and the temporary arrangements have a tendency to turn into permanent arrangements, Brunswick divorce lawyers focus a lot of attention on these temporary hearings. Both the attorney and the party must be ready to work hard from the very beginning. The party responding to the complaint may have only 14 days notice prior to the hearing, so the responding party and their attorney must be ready to begin working hard on the case immediately after receiving notice of the hearing. To prepare for a temporary hearing, a Glynn County family law lawyer will do the following:
1. Make their client’s case in the complaint or the answer. Complaints and answers usually make generic statements concerning required elements of the case, such a identifying the parties, explaining why the case is being filed in Superior Court in Brunswick, Georgia, rather than some other court, and stating the nature of the claim. But with a temporary hearing coming up quickly, a good divorce lawyer will want to make the case in specific factual detail, “telling the story” for the court. We do this because the judge will read the complaint and the answer prior to the hearing. We want the judge to understand our case prior to the hearing and, hopefully, start to prefer our side of the case before the hearing begins.
2. At the two hour temporary hearing, only the party and one other witness are allowed for each side. But each side is allowed to submit unlimited affidavits for the judge to review along with the testimony. A good family law lawyer will focus on preparing and submitting as many good affidavits as possible.
3. Prepare a credible Domestic Relations Financial Affidavit. The financial affidavit will itemize the client’s income, expenses, assets, and liabilities. It is absolutely vital that the financial affidavit be prepared carefully and accurately. The numbers should be calculated from financial records, such as bank accounts and credit card statements, rather than guessed at. Not only is the financial statement one of the foundations of the case for alimony, child support, and property division, it also enhances or diminishes the party’s credibility.
4. Documentation of income and significant expenses must be prepared.
5. A child support worksheet must be prepared. Documentation proving each element of the child support worksheet, including any proposed deviations, must be assembled.
6. Documentation showing current balances of all liquid asset accounts and retirement accounts must be assembled.
7. An attorney’s affidavit about current and expected attorney’s fees must be prepared.
8. The testimony of the party and the witness must be prepared. These hearings are short. Concise, focused, prepared testimony is crucial. Rambling, disjointed testimony does not work.
9. Cross-examination of the other party and their witness must be prepared. Too many divorce attorneys attempt to make up cross-examination questions after listening to the other side’s direct testimony. The result often does more harm than good. Again, preparation is the key.
10. A good divorce lawyer will prepare a reasonable plan for the court to adopt. The plan should address all elements of the case in a coherent manner. Making wild, unreasonable demands does not help. The court is looking for a solution.
11. Finally, settlement proposals should be reviewed. Settlements discussions between divorce lawyers always occur in the hallway of the superior court prior to a hearing. Failure to prepare for settlement can result in important terms being left out of the agreement.
Divorce Settlement Negotiations
Once the court issues a temporary order from the hearing, both parties should reassess the case. It is a good time to restart settlement negotiations. If the ruling is strongly in your favor, this may be a chance to make peace and get settlement by making small concessions. If the ruling does not give you the result you were expecting, you may want to settle with the best deal you can get. The result is not likely to change.
Scheduling the Divorce Trial
If settlement does not occur after the temporary hearing, the family law lawyers will contact the judge’s office to schedule a divorce trial. This trial, know as a “merits trial,” may last more than one day and will be set several months into the future. The merits trial and the preparation of the merits trial will demand a lot of the attorneys’ time. The merits trial is a much bigger undertaking than the temporary hearing. It can last days instead of hours and involve numerous witnesses. This is the point in divorce litigation where the attorney’s fees can begin increasing dramatically. A divorce attorney may require a sizable additional retainer before beginning the preparation required for the merits trial. The parties should again carefully assess their willingness and financial ability to proceed before embarking on a merit’s trial.
A Jury Trial in Divorce
Georgia is one of only two states that allow the merits trial to be conducted before a jury. Texas is the other state. In Georgia the jury can rule on property division and alimony, but not child custody, visitation, and support. Sometimes attorneys who are also criminal defense attorneys will request a jury trial, but divorce lawyers almost never want a jury trial. Preparation for a jury trial is even more extensive than preparation for a trial before a judge. The jury will not be familiar with many of the complexities of marital property division, so the lawyers will need to educate the jury about these matters during the trial. The trial will take longer. The attorney’s fees will be larger. And the jury might do almost anything.
Discovery in Family Law Litigation
As part of the preparation for the trial the parties can engage in formal discovery. Formal discovery can include:
1. Interrogatories. Written questions that must be answered in writing and under oath. Georgia law allows each part to submit up to 50 interrogatories.
2. Request for production of documents. Each side can require the other side to hand over any relevant documents for inspection and copying.
3. Depositions. You can require the other party, or any other person having relevant information, come to your divorce lawyer’s conference room and answer the lawyer’s questions under oath. The questions and answers are recorded by a court reporter, who will prepare an accurate transcript.
4. Subpoenas. Anybody having relevant information or documents can be required to appear and produce the documents at a deposition or court hearing.
5. Request for Admissions. These are written claims that the other side must admit or deny. A good divorce attorney will use these to pin down the other side and determine what factual disputes must be addressed at trial.
In addition to formal discovery, a good divorce lawyer will garner information by reviewing public records and interviewing witnesses.
Preparation for the Merits Trial
Both sides then prepare their case for the merits trial. The preparation is similar to the preparation for a temporary hearing, except that property division is now involved and the trial will be longer and will involve many witnesses. Untangling and equitably dividing marital property is a complex matter that will typically require numerous decisions and rulings from the court.
A Final Chance at Settlement
On the morning of the trial, further settlement discussions will occur in the hallway of the courthouse prior to the start of the trial. The judge may become involved in the settlement discussions. While there is nothing to stop the parties from discussing settlement at any time, often in the run up to the merits trial people are focused on preparing for the merits trial and little effort is made to settle the issues.
Once the judge or the jury rules, the divorce lawyers will prepare a detailed judgment of divorce setting out the court’s ruling. The parties are not actually divorced until the written judgment of divorce is signed by the judge and entered by the court.
Lee S. Ashmore is a Brunswick divorce attorney who advocates for men and women in contested divorce litigation in Glynn County, Brunswick, and Saint Simons Island, Georgia. Your initial consultation is free.
The Bank of America Building
777 Gloucester Street, Suite 402
Brunswick, GA 31520
P: (912) 275-7728
F: (912) 342-7142