Use Your Pretrial Conference to Help Avoid Going to Trial

Separating couples have disagreements on settling all types of issues... geese top my weird chart though.
Separating couples have disagreements on settling all types of issues… geese top the weird chart though.

Hi there,

There are many stops on the road before a divorce trial takes place. If you and your soon-to-be-ex-spouse still have disputes after your four way meeting, your next shot at settling the case is through a pretrial conference. At the pretrial conference, the judge who would preside over the actual trial is the judge who will look through all your documentation and tell everyone what he or she thinks about the remaining disagreements. If you’re able to work through the disputes, this can be a great opportunity to settle without going to litigation. Your attorney should bring a draft agreement, as most people get divorced on the day of the pretrial conference.

Tell Your Story with a Pretrial Memo

In preparation for your pretrial conference, your attorneys have the opportunity to explain your side of the story through a well-written memo (a “pre-trial memorandum”). This memo should clearly explain to the judge what you want and why you deserve it. It’s your chance to tell your side of the story in the best way possible.

Bring All Necessary Documents to Your Pretrial Conference

If you want to settle the case at the pretrial conference, everything should be on the table. In the case of a custody issue, the guardian ad litem report should be in and should be reviewed by both sides. Financially, there shouldn’t be any open questions as to what your assets are or how much they’re worth. You’ll need to prepare financial documents ahead of time because both divorcing parties are required to file an up to date financial statement, and should file an asset chart as well.

The Judge Has Spoken

Once your judge is presented with this information, he or she will explain how they would likely pass a ruling on the case. You, your soon-to-be-ex spouse and all of your attorneys will then have the chance to discuss the situation privately. Based on the way the judge was leaning, hopefully you’ll be able to reach an agreement. The court is always willing to take that settlement. You can be divorced that very day!

It’s not always that easy. Sometimes you can’t agree on everything, and your case will still have to be tried. At the very least, the pretrial conference gives you the opportunity to narrow down the issues, have a clear understanding of the other side and get some good insight into how your judge will view matters.

In a perfect world, every pretrial conference would end with either a settlement or helpful feedback. In the real world of our very overburdened court system, it doesn’t or can’t always occur so flawlessly. Sometimes even when you do everything correctly, you still may not be able to come to an agreement, or you may get little or no feedback from the court.

Not All Cases Are Alike

You never know which issues will be the ones you and your soon-to-be-ex spouse will get hung up on. I once had to try a case over how many geese were appropriate to keep on a small family farm. The issue: goose droppings. We actually had discussions as to how many of the current geese were allowed to reproduce. It’s moments like that where I wonder why I chose law school…

Keep in mind that some cases just can’t be resolved without going to trial. There could be custody issues, valuation issues or contribution issues that are so dissimilar that they require a trial. Many, if not most, custody cases require a trial.

95% of cases can be settled before, at or close to the pretrial as long as your attorneys have been thorough and meticulous in preparing for the pretrial conference.

Best,
Nancy