There are some cases which do not lend themselves to an amicable resolution. Either the parties cannot communicate or, if they do, they do not trust what the other says or agree with it. Given the magnitude of the issues involved in a family law case, including those related to parenting, support, and the division of marital assets and liabilities, and the likelihood that the parties have strong feelings about how those issues should be decided, conflict is common. If the parties cannot resolve their differences themselves, they will have to turn to the court for decisions.
A contested case can involve the following steps. Although it is possible to pursue a contested case pro se, i.e. without an attorney, experienced legal advice should be obtained as early as possible in the process, particularly if the other party is being represented by an attorney. While cost is a consideration, it should not be the only one, especially given the importance of the issues involved and the long-term impact of decisions which will be rendered by the court.
1. Gathering complete and accurate information relevant to the financial issues involved in the case, including without limitation a complete list of income, deductions, and expenses as well as, in divorce cases, assets and liabilities; if there will be any question about any of this information, documentation verifying it should be obtained. Information and documentation about any non-financial issues which will not readily be resolved must also be gathered.
2. Preparing and filing the documents required to bring the matter before the court, including without limitation a complaint and supporting documentation.
3. Serving the other party with the complaint and a summons (issued by the court after the complaint is filed) through a constable or deputy sheriff.
4. Appearing before the court on a motion for temporary orders if necessary to resolve any immediate issues, e.g. the parenting plan and interim financial support. Please note that at this initial stage the court typically will not deal with property issues (in a divorce action) or with any issue in a modification action, in the absence of an demonstrable emergency.
5. Exchanging information and documentation, as well as financial statements conforming to of court rules. If not done voluntarily, formal discovery can be utilized, including without limitation interrogatories (written questions which must be answered in writing under oath), requests for production of documents (written requests to which a written response and documents must be provided), and depositions (live sessions at which parties and other persons, including employers and financial institutions, are questioned under oath before a a court reporter who transcribes their testimony).
6. Appearing before the court for a pretrial conference, at which the judge assigned to the case will actively assist the parties to resolve their difference by offering his or her insight and opinion on the issues involved.
7. Appearing before the court for a trial, at which witnesses are questioned and documents produced in accordance with the rules of evidence. The judge will decide the case based on the credible evidence and enter a judgment binding on the parties.
8. Appealing the judgment entered by the trial judge. It is important to understand that an appeal is not a retrial of the issues, it is a review by an appellate court of a transcript of the testimony offered and of the documents introduced into evidence at trial to determine if the trial judge made an error of law during the trial or in preparing the judgment which legally requires that the judgment be reversed or the matter returned to the trial judge for clarification. Because the chances of success on appeal are slim and the cost of pursuing it are high, very few cases are appealed.
Special note about contempt actions: Because contempt actions involve the enforcement of existing court orders, it is likely that they will be contested. The procedure is different from the preceding steps, however, because the court wants to expedite the process so that compliance is attained as soon as possible. When the court receives a contempt complaint from one of the parties (“the plaintiff”), it prepares and sends out a contempt summons which includes a “return date” on which the parties are both required to appear in court, usually only a few weeks after the filing. The plaintiff then a constable or deputy sheriff serve the other party (“the defendant”) with a copy of the complaint and summons. The parties then appear on the return date to address the issues involved. In the unusual event an evidentiary hearing is requested, the court will schedule one if it deems it necessary.