By Law Office of August J. Landi |April 06, 2022
Implementing a Team Approach to Representing Your Interests
At our initial office conference, we likely touched on your concerns, the court process and the dispute resolution options available to efficiently resolve your case. The Court serves as a backdrop to reaching your goals. If each party to this dispute has reasonable expectations and has retained counsel focused on resolving issues, the prospects of reaching your goals are high. If emotions are powering up the dispute, the Court will automatically conduct a "Case Management Conference" to set time constraints for completion of discovery, settlement conference at Court, referral to Economic Mediation. If child issues are paramount, the Court will mandate mediation at the courthouse; if unsuccessful, the Court may order a Custody Neutral Assessment conducted by a court-approved mental health professional to determine whether custody issues require a hearing. The more you and your spouse are able to manage the resolution of issues either directly or with counsel's guidance, the less the Court will intervene.
The purpose of this Article is to provide you with an understanding of how we work and what the law requires, so that we can work together effectively as a client/lawyer team to advocate and present your concerns.
Our relationship requires transparent and timely communication between us. This office should never be "the last to know". An example: At court in a case where this office was representing Parent 1 seeking custody of a pre-school child based on Parent 2's asserted unfitness, counsel representing Parent 2 approached me and asked "Have you noticed any difference in my client's appearance?" Reply: "Is she pregnant?" Ans: "Yes." Reply: Who is the father?" Ans: "Your client." I was the last to know. Self-censoring your thoughts does not advance resolution of your case.
Children: If there are serious parenting issues we will ask that you provide a parenting history. You should jot down dates and notes, so that you can relate events as the history is prepared at our office. Can the issues you are experiencing be handled through co-parent counseling or other psychological interventions? Is the courthouse the proper venue to resolve your child-related issues? What alternatives are available? We will discuss this threshold early on.
Financial Issues: Nearly every case requires preparation of a "Case Information Statement". The CIS captures in one spot a summary of income, living expenses, assets and debts. The starting point for collection of this data is information you are able to provide relative to your marriage, finances, children and any other relevant information available to you.
We start out with no knowledge of, or insight into, your life- other than what you provide. In the "discovery" process your spouse will be required to provide financial information to the extent required.
Communicating with Us: As we have subsequent meetings, jot down questions or concerns that you have in advance so that your issues and concerns are handled. Some attorneys refuse to communicate via e-mail. We find them helpful- if used sparingly and thoughtfully.
Communicating with Others: "Litigants" continue to submarine their cases by emoting on facebook, social media and in text messages to their spouse, children and third parties. So do children. Before pressing the send button, ask a simple question: "Will this communication wind up in Court? What if a Judge were to see or hear it?" Chances are if you ask that question, you will delete instead of send.
Document Collection: Writings and documents should not be removed from the home unless copied. Often a document or picture is "worth a thousand words". Once lost or destroyed, it may be impossible to replace. Bank records going back years may not be available for reproduction. If you have the records at hand, copy them. If children are at issue, family photographs and videos are important to provide to us. Documents that are submitted in support of loan application to banks usually set out either accurate or rosy projections concerning financial circumstances. That is why we ask you to seek out documents and pictures at the very beginning of the case.
The Litigation Process
Cases have emotional peaks and valleys. At times, there will be intense activity; at other times things on the surface will appear inactive. If your case proceeds via collaborative negotiation, mediation or arbitration the court process will be less relevant. However if there is no forward momentum towards dispute resolution, the Court proceedings will be highly relevant and controlling as time goes on. Described below are typical stages of matrimonial proceedings:
1. Maintaining the Financial Status Quo
By Agreement: If you and your spouse are able to maintain the status quo without Court intervention, you should do so. To assure this happens, an interim "Consent Order" can be prepared by counsel memorializing your agreement. There may be advantageous tax reasons for doing do. A Consent Order does not require counsel to go to Court and is simply sent to the Court for entry by the Judge and filing. This stabilizes financial arrangements while negotiations and discovery take place.
By Application to the Court: Where agreement can not be reached to maintain the status quo, one or both attorneys will likely file an application to the Court to set support; "freeze" assets; and issue restraints against unnecessary future debt creation.
This requires the Court to engage in an "arithmetic" exercise to derive economic support figures to provide a fair sharing of family resources. This process has a fancy latin name: pendente lite application to the Court or pendente lite support. Pendente lite = pending the litigation.
This is recognized by the Court and counsel to be a "bandaid" decision subject to revision at the end of the case when the Court has the requisite information to fairly adjudicate the issue.
If the Judge's pendente lite Order unfairly benefits one party, this may stall resolution of the case, with the benefiting side, "sitting on the Order." Where there is insufficient money to go around, Judge's sometimes strive to make the interim support Order equally uncomfortable for both parties. The Court's order, if not accurately grounded, has all sorts of unintended consequences that will delay resolution of the case. The "winning" side will have increased confidence in their attorney; the "losing" side will lose confidence. One side may believe the case is over- they've won.
2. Other Pre-Trial Applications to the Court
The highest and best use of counsel is to resolve disputes, not run amok in the Court house filing unnecessary motions. That said, there are times when one side is recalcitrant and the other side seeks court assistance to move the case forward. As example:
(a) Where documents are not being provided on informal request
(b) Where third parties (e.g parents who funded the marriage) need to be brought into the case.
(c) Where marital property has been conveyed to third parties in advance of filing for divorce.
(d) Where one party seeks to move out of State with children without court permission.
3. Case Information Statements
Our office has already provided you with a Case Information Statement (CIS) form that requires completion. It appears confusing and complicated. All we ask is that to save time, you do the best you can in filling out the form. We will work together on preparing the CIS in proper format. The CIS has the benefit of collecting important and relevant financial information in one spot using the same format for all cases. It is thus helpful for attorneys, mediators, arbitrators and the Court who are used to viewing many CIS's and can quickly cull out important information; to determine whether the CIS is completely off the rails: as example where income is claimed to be $2,300 per month and monthly living expenses are listed at $10,500 per month.
The CIS is frequently amended during the course of the case as discovery unfolds and additional facts are revealed. Accurate completion of this form is critical to effective presentation of your case. The form is filled out and signed by you under oath and the penalties of perjury. Therefore, if there is knowingly erroneous material in the form, it can be used to impeach your credibility at trial.
Few of us keep register receipts and records of all monthly living expenses during marriage. You need to begin doing so now. Keep register receipts of all expenses from now on.
Before submitting the CIS to the Court, be sure to review all line items with us to assure they are accurate to the extent within your present knowledge. As example if you claim your electric bill averages $450 per month rather than a greater or lesser sum, you should be able to back this up with past electric bills.
I find interrogatories (written legal questions sent to your spouse's attorney) to be a near complete waste of time in most marital disputes. They require endless time to answer and rarely achieve useful results for the time and energy devoted to them. That said, most attorney's exchange interrogatories (many of which go unanswered) as cases resolve. This is an issue we will discuss. There is another way:
Notice to Produce & Subpoenas- Demands for Admission
These are useful discovery techniques. If assets have been removed in preparation for or during the divorce process, we can serve opposing counsel with a "Notice to Produce" banking accounts and financial records. If not produced, or if the records provided are suspect or incomplete subpoenas can be sent to the financial institution holding (or formerly holding) marital assets. Historically "Demands for Admission" have been under-utilized by divorce attorneys. This is something worth discussing when we meet.
Depositions are similar to court proceedings without a Judge. Witnesses called to testify do so under oath and are questioned by counsel. Answers are transcribed by a certified court reporter. Depositions are useful to simply trial of the case or as an inducement for the other side to be reasonable when taking unreasonable positions. Lawyers do not like to be "surprised" at trial. They like to know the answer they evoke from the questions they ask. One area where depositions are counter-productive is where you know there is a deep dark secret.
5. Utilization of Detectives:
The following example is from an actual case 20 years ago. Our client suspected her husband was not forthcoming about family finances and was regularly removing money from the marriage. The question was why and where was the money going?
A husband and wife detective team in their mid-sixties was engaged to determine what was happening. Our client's husband was traced to a summer rental in Long Island. On a June afternoon, the detective team showed up on the husband's front porch ostensibly looking for rentals in the area. They spent a pleasant afternoon while the husband spilled the beans relative to his "stupid wife" and her "stupid divorce". Since the case was scheduled for trial, the information gleaned was saved for confrontation at trial in front of the Court, rather than disclosed during a deposition.
6. Expert Witnesses
In litigated trials, Expert witnesses are engaged in "opine" on business valuations, cash flows, the cost to support the lifestyles of the parties; and best interests of children when custody is at issue. This approach to dispute resolution costs tens of thousands of dollars or more- sometimes much more; leading to dual experts sometimes with wildly disparate opinions, and the trial judge caught in the middle.
In Arbitration, cost containment can substantially reduce such costs. In most instances Arbitration as opposed to contested litigation is the best path forward. This is something to be discussed with counsel and beyond the scope of this Article. Rule 1:40-3 describes other dispute resolution protocols.
Our relationship requires open and clear communication for each of us with the other. In contested cases, there will inevitably be times when frustration levels rise. This is predictable. That said, we must each speak openly and candidly with each other at all times. I pledge always to let you know what I think and what the consequence may be of a particular course you wish to pursue, to the extent that I can make a predication based upon all that I have learned in five decades of practice.
If the path you are on is counter-productive, you need to hear this and be able to process the thoughts expressed. You should remain open to our discussions in a respectful and rational way. You are entitled to the benefit of our thoughts as to everything occurring in your case. We expect the same from you. We cannot know if you are displeased or dissatisfied unless you tell us. If there is something you do not understand or disagree with, simply ask, so that we can discuss it together. Fundamentally this office is your Agent. Clients seek advice from counsel and then authorize and instruct their attorneys what to do- not the other way around. Attorneys follow their client's instructions unless doing so is unethical or illegal. For that reason, it is critically important that we work collaboratively and are on the same page as to how best to proceed. Finally, please exercise discretion in not disclosing our discussions to your spouse or mutual friends in contested proceedings. A surprising number do, and it is rarely helpful!