Step 8 – Status And Pretrial Conferences
Status And Pretrial Conferences
If the parties cannot reach agreements on all the necessary aspects of divorce, the case will need to be prepared for trial. The next step in this process is scheduling and attending a status conference with the court. This conference will help to shape the litigation going forward and get the divorce progressing towards resolution when settlement negotiations have stalled. However, it is important to remember that just because negotiations have failed prior to this point does not mean that the parties won’t reach an agreement before trial. Reaching an agreement to resolve the divorce’s property division, support obligations, and child custody is always an option leading up to the day of final trial.
A status conference’s main purpose is to update the court on what has happened since filing, or the last time the parties appeared before the court. The court will be informed of any issues that have been agreed upon and what issues still remain unresolved. For example, the spouses may have arrived at an agreed upon property division, but still need assistance determining support obligations and child custody. The court will take note of the unresolved issues and explore how likely an agreement may be moving forward. This will include possible avenues of resolutions outside of trial, such as court ordered mediation—with or without court provided assistance. Dates for these alternative dispute resolution tactics will be set formally by the court, either in the form of specific dates or, more commonly, deadlines by which the parties must have attempted such routes.
A discovery plan will also be established, typically early in a case, at a status conference. This includes setting any necessary limits on discovery, such as outlining topics that are agreed to as outside the boundaries of the case. In a no-fault divorce, such out of bounds topics may include extramarital affairs, or post-separation relationships. However, there are exceptions to this general rule depending on the facts of a case. Deadlines for completing discovery will also be set. After this date, any additional discovery requests from either party will only be permitted by agreement of the parties, or leave of the court. If a deadline has passed and the parties do not have an agreement to continue with discovery, or the court does not grant leave to issue additional discovery, then neither side would be required to be answer any discovery request issued after the court imposed deadline. The parties may also discuss and agree upon any discovery disputes that have already arisen. These may be in the form of documents that are argued to be privileged or argued are irrelevant to the issues of the divorce.
The final, broader issue to be handled at a status conference is overall scheduling. As discussed, the court will set dates or deadlines for mediation, settlement conferences, and discovery. The court will also set a cutoff date for any motions or amendments. Finally, the court will set a pretrial conference and trial date. Though these dates may be moved occasionally, regularly they will remain unchanged throughout the litigation. This helps both the court and the parties plan out the litigation going forward, and also helps the parties and the court ensure the matter is resolved in a relatively timely manner.
Status conferences are essential to establishing a timeline for the remaining litigation. However, courts will not hold status conferences immediately. Instead, a “cooling off” period is typically observed before the first status conference will be scheduled (it is not uncommon for a case to have anywhere from one to three status conferences before it is finally concluded). This “cooling off” period will be at least 60 days, but it is likely to be much longer depending on how full the court’s docket is. Experienced counsel can utilize this mandatory waiting period to facilitate settlement or gather information to prepare for trial.
The pretrial conference is often the last hearing held in a case before final trial. At this point, several attempts at reaching agreements will have likely been tried, but will have failed. The issues that need to be resolved at trial will likely have been substantially narrowed, even beyond what they were at the last status conference. The judge will want to know and attempt to address those issues that are still left unresolved in order to understand what will need to be resolved at trial. This, in turn, allows the court and the parties to assess how long the final trial will need to likely be. Though it depends on the number of issues left to be resolved, divorce trials generally will not exceed one to two days absent exigent circumstances.
The court will also perform any “housekeeping” functions to prepare for trial. Any outstanding motions will be addressed, though perhaps not decided. For example, motions in limine, which deal with likely evidentiary issues, may be heard and considered. However, the judge is likely to not make a decision until the evidence is actually attempted to be admitted at trial. By reviewing the motions and becoming familiar with the law, the judge can make an informed decision when the dispute does arise, rather than having to shoot from the hip during trial. Any other last-minute issues or problems will also be dealt with at this conference.
The goal for both the attorneys and the court at a pretrial conference should be to ensure only the still-undecided issues are dealt with at trial. Judges can quickly grow impatient when one side attempts to stir up already decided or non-controversial issues during a pretrial conference. Instead, experienced counsel can use the pretrial conference to show the judge that he or she has prepared for the matter and is ready to quickly resolve only the need facts. The less “fluff” left in the case, the more attention the attorneys and the court can give to what really matters in resolving the divorce.
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