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FAMILY LAW

DIVORCE

 

Contested or Uncontested?

      Invariably, the first question a caller asks is "How much do you charge for a divorce?". Our response is that it depends on whether the matter can be settled by agreement or not. A case that is settled without controversy is said to be "uncontested" and an experienced attorney can estimate fairly accurately the amount of time it will take to conclude the matter once the facts and settlement terms are known. In this instance, an attorney can usually provide you with a "flat" fee based on the estimated time and costs involved. However, a consultation between the attorney and the prospective client is required in order to evaluate the case and quote a price.

      On the other hand, if one or more issues cannot be agreed upon, the matter is said to be "contested" and the overall price will depend on the amount of attorney time spent on the case and the costs incurred. A contested case requires the client to pay a retainer in advance which the attorneys will be paid from as work proceeds in the case. All time spent on the case is recorded and the client is charged in accordance with the engagement agreement which is executed between the firm and the client at the beginning of the case.

      An uncontested divorce can be concluded in as little as one or two weeks. A contested case on the other hand can take up to a year or more depending on the issues in dispute.

Uncontested

 

     In an uncontested case, the prospective client and attorney meet to discuss the facts of the case, the settlement terms, and the fees and costs. The attorney will prepare an engagement agreement which is executed by the prospective client and the attorney. The client will make an initial payment of, usually, at least one-half of the attorneys’ fees in order for the attorney to begin drafting the necessary documents. It usually takes a day or two to prepare the draft documents and we either send them to the spouse with a cover letter or the client takes the documents to the spouse for review and signature.

     Once the documents come back signed by both parties, the client will pay the filing fees (if not paid previously) and we will file the case and set it for hearing. Often times, just the client attends court on the hearing date and the spouse does not go. The client will pay the balance due if any prior to the hearing. At the hearing, which is known as a "prove-up", the attorney will question the client under oath in front of the Judge about the contents of the agreement. Provided the judgment is not found to be grossly unfair or "unconscionable", the Judge will adopt the proposed settlement agreement as a judgment of the court and the divorce will become final.Contested

     A contested case begins with an initial consultation and case intake. An engagement agreement is prepared and signed between the attorney and client and the client pays the initial retainer. The facts will be obtained and the strategy will be developed. Initial pleadings will be prepared following the case intake and an appointment will be setup for the client to return to review and sign the pleadings. The case will be filed with the court and a summons will be issued to the spouse. A summons, once delivered, serves as the official notice to the spouse that the case is filed and the spouse must take action. Within 30 days of service, the spouse must file an appearance and response to the initial pleadings. Failure to appear or respond could result in a "default" being entered against the spouse.

     After the spouse or the spouse’s attorney files an appearance and response, the parities may seek interim relief from one another in the form of temporary custody, visitation, support, maintenance or other relief. The parties will typically request financial and other information from one another in a process that is known as "discovery". This could include responding to written questions, providing copies of financial and other documents, participating in depositions, and sending requests in the form of subpoenas to third parties, such as employers, for information.

     Typically after a case is filed, there will be regularly scheduled "status" dates in court whereby the attorneys will appear before the Judge to advise him or her of current developments and status on the case. The Judge may conduct one or more informal "pre-trial" conferences in his or her chambers with the attorneys. The purpose of such conferences is to present the issues to the Judge in an informal atmosphere without the procedural constraints of the courtroom in an attempt to offer settlement suggestions to the attorneys. The parties are not bound by the Judge’s recommendations but the suggestions provide insight to the attorneys as to how the Judge may rule on an issue if the matter is decided at hearing or trial.

      If the parties ultimately reach a settlement agreement, the procedure to conclude the case is much like that of an uncontested case. However, if the parties are unable to reach an agreement, the case will proceed to trial and the Judge will make the final decision.

 

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