Contested Divorces and Trials in New York

By James Nolletti
March 15, 2018

James Nolletti is a New York attorney who provides his clients peace of mind. Assertive and client-centered, Mr. Nolletti and his team of professionals are dedicated to providing prompt, efficient, and exceptional legal services. In this podcast James answers questions regarding divorces heading to trial, the benefits of litigation, and the importance of privacy during a contested divorce

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Hosted by: Diana Shepherd, Editorial Director, Divorce Magazine 
Guest speaker: James Nolletti is a White Plains divorce lawyer and founder of Nolletti Law Group. James has over 30 years of experience in providing excellent service to individuals going through divorce who have complex divorce issues and significant assets.

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Read the Transcript of this Podcast Below.

What are the steps a couple in New York must take to have a contested divorce? Is there a timeline associated with these steps: deadlines for when each step must be completed?

In New York, a contested divorce is one that involves court intervention to resolve issues. This type of case usually begins when a spouse files a divorce action with the court. That spouse then has 120 days to serve the divorce papers, usually a summons and they verify complaint on the other spouse who in turn has 20 to 30 days to respond depending on how they were served.

A request for judicial intervention, commonly called an RJI, is usually filed early on in the case. Its purpose is to involve the court in the discovery and pretrial process so that deadlines can be imposed and issues can be resolved in order to keep the case moving towards resolution.

The New York State court system has what are called standards and goals guidelines which seek to resolve a standard case within 12 months of filing of a request for judicial intervention. Complex cases are obviously allotted more time. During these time periods the parties will have to attend court conferences so that the court can set, as well as monitor, discovery deadlines, issue orders regarding interim support and/or interim child custody and access and authorize the use of experts deemed to be necessary by the attorneys. Of course the parties may reach a settlement agreement along the way. In fact, most cases that start out in court do end up settling – but if they can't reach an agreement on all of their issues, then a trial scheduled.

Does a family court judge rule on all divorce issues, or only those where the divorcing couple has been unable to reach an agreement?

In New York, believe it or not, divorces are held in Supreme Court. Family court doesn’t grant divorces in New York – it deals with issues like support and custody and access and various other family-related matters.

But in Supreme Court, in divorce cases, the judges usually rule on issues upon which the parties cannot agree. Sometimes the judge is asked to transform the party's agreement into an order for ease of enforcement. And sometimes the judge will override procedural aspects of the party's agreement if he or she finds them to be dilatory or otherwise unacceptable to the court.

What are the benefits of divorce litigation – especially in the case of a high-asset divorce case?

While it is almost always better for parties facing divorce to settle their issues, sometimes a fair settlement cannot be obtained because of the need for financial discovery as well as identification and valuation of certain tangible and intangible marital assets.

One of the most important benefits of divorce litigation is the ability of a party’s attorney to issue discovery subpoenas to third parties to obtain documents from them related to income, employment, credit card and bank records from individuals or their business entities. These third parties are not interested in the divorce litigation, so they have a degree of objectivity and credibility to them.

Once these documents are obtained, the divorce litigation process enables a party's attorney to examine the other spouse and even third parties under oath for the purpose of obtaining answers to questions regarding financial transactions, living expenses, business deductions, investments, missing funds, and other such financial matters.

These procedures are not available in mediation or the collaborative divorce process, which rely upon the parties being totally honest with respect to financial disclosure. If the divorcing parties are W2 wage earners, then their case might be well-suited for mediation or collaborative divorce – but if there’s a family business, for instance, then litigation is probably the right choice.

Another benefit of litigation is the opportunity to involve a judge, court attorney, or a referee to resolve issues between the parties that they might not be able to resolve on their own.

In a contested divorce case, is there always a trial, or is it possible to settle out of court?

It's always possible to settle a contested divorce case without a trial – and in fact a large majority of cases do just that. Judges encourage parties to settle their differences and more often than not judges help them to do this during a divorce litigation process. For example judges can help resolve intermediate disputes regarding such things as temporary support, discovery issues, educational expenses, financial responsibilities, parental access time, interim occupancy and possession of the marital home and other such matters which then later may form the basis for final settlement.

In your experience, which issues should be tackled first in a contested divorce case?

The first and most important issues for resolution in a contested divorce that involves minor children are the child-related issues such as custody, parental access time, and various other issues. Sometimes the court appoints an attorney for the child or children to help resolve such matters promptly. This is another advantage of divorce litigation over the mediation or collaborative processes where there's no judge. The attorney for the children is able to interview the children and convey to the court some of the children's concerns or needs insofar as the litigation or settlement of the case is concerned.

What qualifications should someone look for when choosing a lawyer to represent them in a contested divorce case?

The lawyer’s knowledge and experience are extremely important – especially if it's likely to go to trial. Ask how well-versed the lawyer is in the specific aspects of the law that will be crucial to your case. How much trial experience do they have – and what was the outcome of those trials? Do they focus their practice on family law and divorce litigation, or mediation and collaborative law? They also must have experience with financial discovery – particularly when it comes to complex asset cases, where litigators can use their subpoena power to facilitate financial discovery.

Another question to ask is whether the lawyer has been recognized by their peers for their trial skills. Have they distinguished themselves in trying cases? I've heard people say that they're thinking about a divorce and that they want the meanest, toughest attorney they can find. They say they want a fighter. I always shudder when I hear that. There is a time and place for aggressive representation in matrimonial litigation, but a fighter is the last thing anybody should want in a family lawyer. What they should want is an experienced lawyer: someone who is able to deal with all the issues in the case, give their clients good advice, and do their best resolve issues without creating new ones.

Preparation is very important as well. You cannot go to court unprepared; you could be as aggressive as aggressive can be, but if you're not well-prepared, you're going to fail.

In a divorce trial, do divorcing people and/or the children ever take the stand? Or will the attorneys rely on expert witnesses to make their case?

Usually, the divorcing couple takes the stand during a divorce trial. Depending upon the issues, other fact witnesses or expert witnesses may also testify. Ordinarily, the children do not testify on the witness stand in open court. In New York, the court has the discretion to hold a private hearing where the child or children are brought into a private room with only the judge – and if one has been appointed, the attorney for the children – as well as a court reporter so a record can be made of the conversation.

In that room, the judge can interview the children about pertinent custody issues in the case. Notably absent from the room are the parents and their lawyers. The hearing is conducted in this fashion in an effort to limit any psychological damage to a child and encourage the child's interview to be more informative and worthwhile than a traditional adversarial courtroom procedure.

Should a high-net-worth divorce client avoid going to court to make sure their private business remains private?

One often reads or hears about divorcing celebrities in the media. In most cases, it's because a the client or perhaps his or her publicist has decided that some press coverage or publicity is a valuable to them. However, it's critically important that lawyers representing high-net-worth clients know how to protect the privacy of those clients who wish to keep their personal business private.

Lawyers with experience in high-net-worth and celebrity divorce cases are familiar with the tools available to protect the names, finances, and personal privacy of their clients and their client's children against public disclosure. For example, the party's names can be removed from the case caption by court order. In New York, the contents of divorce files are confidential; only the parties and attorneys of record have access to the files.

It's against the law for anyone working in a New York State courthouse to leak information regarding a divorce file. Typically, confidentiality agreements are entered into that prohibit the parties and/or their lawyers as well as the experts hired by the lawyers from disclosing information related to the divorce proceedings and the terms of any divorce stipulation.

I have only had one celebrity client tell me that there's no such thing as bad publicity: that all publicity is valuable to someone who is in the public eye. Some celebrities will attempt to try their cases in public, but a good lawyer will discourage that. When you have clients who feel that their privacy is important to them, the lawyers must know how to protect it.

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March 15, 2018
Categories:  Podcasts

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