subject: The Joy Of An Ex - Court Process [print this page] You have tried kitchen table discussions, negotiation, and mediation. Maybe you have even tried a collaborative approach - all without success. It's now time to consider going to court to finally determine what might be considered a fair, or even just, resolution to the issues over which you and your spouse continue to fight.
Over the past decade or so, efforts have been made to make the court system a more 'user-friendly' place; it still is not, however, a place for amateurs. There is an expression amongst lawyers that "someone who represents himself has a fool for a client". In large measure this may be truer than it seems at first glance.
Timelines
Efforts have been made to streamline and speed up the court process. Litigants continue to be surprised that it could take anywhere from six months to two years, on average, to resolve all of the family law issues facing separating spouses. In the 'bad old days' the average length of time taken to resolve such issues ranged from eighteen to thirty-six months. It is not at all like you see in television courtroom dramas - cases do not begin and end within the few short weeks that are often captured in a television program.
Stages in a Family Court Case
In general terms there are 4 distinct stages in a typical family court matter. These stages may be differently named in different jurisdictions.
1. Case Conference: The first time a spouse will have an opportunity to speak with or hear from a judge is at the case conference. The case conference is the initial step in the proceeding and is designed to assist the parties to define the issues with which they require assistance and to determine the appropriate problem-solving strategies to address each of the issues. Important issues such as custody or support will rarely be resolved at a case conference. Rather, the case conference process is focused on determining the information, documentation and expert assistance that will help the parties and court better resolve or determine the issues at hand. In this respect the case conference can be considered a 'house-keeping' stage of the proceeding.
2. Motions: As mentioned above several months can transpire from the time a case is initiated and its ultimate resolution. Therefore the rules of litigation allow temporary orders to be put into place that govern the parties' responsibilities and privileges until a final order can be made at a trial or at a later stage in the proceedings.
Motions for such things as temporary child custody, temporary visitation, temporary child support, temporary spousal support and temporary exclusive possession of the family residence are often dealt with by a judge on the basis of reviewing sworn affidavits submitted by the parties and their witnesses.
Once a temporary order is made it will remain in place for a considerable period of time prior to a final determination, and thus it is important that the judge "gets it right" and has the best evidence available to him or her at the time that the parties argue their motions.
If one party feels that the judge 'got it wrong' and made an order that was not to his or her liking, it is very difficult to successfully appeal that order. Appeal courts are reluctant to second-guess the motions judge, who is generally in a better position to assess and weigh the evidence presented and the law that applies to the issues determined at the motion.
3. Settlement Conference: Once most of the relevant facts and documents have been exchanged, and exper assistance is provided, then it is appropriate for the court to conduct a settlement conference. A settlement conference is also sometimes referred to as a pre-trial.
