Scott David Stewart 2013-02-01 02:39:15
Resolving Your Case: Divorce Negotiation, Mediation, and Litigation (Part 2) As noted at the conclusion of Part 1, when the parties’ divorce negotiations and attempts to mediate disagreements do not resolve all the issues, trial litigation becomes necessary. Ultimately, the judge will decide every remaining issue at trial and dictate child custody terms to the parents. Until there is a final decision, the parties should be encouraged to continue negotiating an agreement so they remain in control of their case. LITIGATING DIVORCE Once the divorce action is initiated, we turn to the Arizona Rules of Family Law Procedure (ARFLP) for disclosures and discovery. • On Rule 49 Disclosures. ARFLP Rule 49 mandates that both parties disclose certain documents and answer questions pertinent to the case. The exchange of this information assures both spouses enter divorce negotiations with an equal understanding of the underlying facts. The duty to make specific disclosures begins with affidavits of financial information and resolution statements of agreements with proposals to resolve all other issues. The spouses must provide documentation and information regarding child custody, parenting time, support, attorneys’ fees, court costs, property, debts, and witnesses (lay and expert). This is a continuing duty to disclose. As they head toward trial, both parties must provide additional relevant information and amend previous disclosures to reflect changed circumstances. • On Temporary Orders. When no court orders are in place, problems over contributions to child support and household expenses surface quickly. To address these concerns, either spouse may request temporary court-ordered relief for the interim, before a trial is scheduled. Temporary orders govern the parties’ actions while the case is pending. Approach a motion for temporary orders strategically, interim orders are often influential when the time arrives for the court to issue permanent orders. • On Resolution Management Conferences. Either party may request a resolution management conference (RMC) to settle issues before trial or the court may schedule an RMC on its own accord. This conference helps the judge manage unresolved custody and child support issues, evaluate the need for temporary orders, and initiate referrals and services in preparation for trial. At the end of the conference, a case is either finalized with a consent decree or scheduled for trial to decide the outstanding issues. The RMC is beneficial in many ways. First, when no settlement progress is made and there is no activity in the case, the RMC avoids dismissal for lack of prosecution. Second, if there is a pending request for mediation or ADR settlement conference, referrals to these services can be expedited. Third, the parties’ resolution statements advise the judge of contested issues and assist the parties in flushing out the major areas of disagreement. Fourth, if no settlement is reached, then the court automatically sets a trial date. A trial date usually reinvigorates negotiations. • On Parenting Conferences. A party may motion for evaluation services in the form of a child custody and parenting review conference through court conciliation services. Although the parties’ attorneys do not attend, the parenting conference is not a confidential process because the matters raised therein may be addressed by the judge. The purpose of the parenting conference is to help the court get answers to determine what’s in the child’s best interests. Where will the child reside? How much time will each parent spend with the child? How will important decisions and day-to-day decisions regarding the child be made? The court conciliator identifies agreements and disagreements over custody and parenting time and makes recommendations. • On ADR Settlement Conferences. Maricopa County has a leading pre-trial program – the ADR settlement conference. A commissioner or judge pro tem presides over the conference, offering a legal opinion on the likelihood of success for each party’s position. This advisory opinion often serves as a wake-up call on the legal merits of each spouse’s position. Importantly, the ADR settlement conference is often the last opportunity the attorneys will have to broker a settlement before trial. The commissioner’s non-binding opinion often leads to breakthroughs in negotiations, even when further settlement was thought to be impossible. When the result is complete settlement, the trial date is vacated. With partial settlement, the case proceeds to trial on the outstanding issues. • On Trials and Appeals. Most divorce and child custody trials take a day. The court’s ruling may come at the conclusion of the trial, but with custody cases and complex property and spousal maintenance matters, judges frequently take the case under advisement and issue a later ruling. Success on appeal is usually limited to two instances: cases involving abuse of discretion in which the judge clearly reached a decision that was not supported by the evidence adduced at trial; and cases where there is newly discovered evidence. Consequently, most trial decisions are final. • On Attorneys’ Fees. Arizona’s § 25-324 allows for payment of attorneys fees in divorce cases. Either party can request attorneys’ fees be paid by the other spouse, regardless of whether both parties are represented by counsel or the party asked to pay is a pro se litigant. The judge has discretion to award attorneys’ fees against a party. However, there are three circumstances under which an award of fees is typically made: • If there is a great disparity in the parties’ income; • If the other party has taken an unreasonable position; or • If a petition filed was in bad faith, not grounded in law or fact, or for an improper purpose (to harass, delay, increase litigation costs). In addition, the court may award deposition costs and other expenses reasonably incurred in the litigation and any appeal. REDUCING DIVORCE COSTS Every divorce involves unique circumstances and complexities, but there is one commonality – the need to keep attorney fees and legal expenses under control. On that note, here are a few simple measures: • On Divorce Education. When a client understands general divorce concepts (custody, support, property division), efficiency improves markedly. Negotiations with the other spouse and discussions with counsel are more focused. The client will grasp issues and strategies more quickly and get greater value from legal consultations in less billable time. • On Using ADR. Litigation is a very expensive method for resolving disputes in a divorce and should be avoided. Mediation and other ADR procedures can help resolve most issues, if not all of them. Even partial resolution on some disputed matters will advance the parties’ case. The fewer issues in dispute, the fewer issues to litigate, the fewer decisions the court will make for the parties. • On Memorializing Agreements. When spouses arrive at agreements on their own, they need to memorialize them in writing. Every agreement represents one less matter for negotiation, mediation, or litigation. • On Cost-Benefit Analysis. The adage “choose your battles wisely” has application in divorce. The client needs to understand that not every issue is worth the cost involved in disputing it. Better to be pragmatic, channeling those matters worthy of an investment in limited divorce dollars. A divorce can be quite economical when the parties cooperate with each other. Even if that’s unlikely to occur, by taking a practical approach to cost savings at every stage, the client can enjoy significant savings over the entire divorce process – including litigation. Scott David Stewart is a native Arizonan and the founding attorney and principal of the Law Offices of Scott David Stewart, PLLC – an Arizona divorce and family law firm with offices throughout the Valley in Phoenix, Chandler, Scottsdale and Peoria. This law firm has earned the trust and respect of clients in cases ranging from marital dissolution to complex property division, child custody, parental visitation, and child relocation disputes. Every case accepted by the Law Offices of Scott David Stewart receives personal attention, careful meticulous preparation, skilled negotiation, and aggressive litigation. Visit the firm’s website at http://www.sdsfamilylaw.com.
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