Understanding Divorce Litigation

Scheduling Order

A divorce proceeding and any other civil proceeding is subject to a scheduling order. In some cases, the scheduling order will be presented to both parties of the civil proceeding at a scheduling conference but there need not be a scheduling conference for a scheduling order to be issued. The scheduling order is issued at the beginning of a civil law case, after a complaint has been filed. It sets forth all of the dates for specific types of discovery to take place and includes dates for any hearings. Discovery is what happens after a complaint is filed and before trial. It is the process by which parties obtain evidence. Some discovery devices are interrogatories, requests for production of documents, request for admissions, and depositions. Discovery is obtained from non-parties through subpoenas issued by the court. A party may seek a motion to compel discovery if the opposing party does not comply with a request for discovery or objects to the discovery.

The scheduling order must set dates for both parties to identify experts, the date discovery must be completed, and the dates all related and necessary motions must be filed. A scheduling order may contain any limitations on discovery, the resolution of any disputes existing between the parties relating to discovery, referral or direction to pursue an available and appropriate form of alternative dispute resolution, an action involving child custody or child access, further scheduling conferences, provisions to obtain discovery of electronically stored information, and process by which the parties may assert claims of privilege or of protection after production. Essentially, the scheduling order is the organizational blueprint of any civil law case and sets forth all of the necessary dates for the different stages including discovery dates, pretrial motion dates, and any hearing dates. In most civil cases, including divorce cases, a scheduling order culminates in a trial in 12 months (one year) unless a settlement is reached, the complaint is dropped/dismissed, or the court extends one or more deadlines within the scheduling order (i.e. discovery deadline, dispositive motion deadline, hearing deadline, etc). It is very important that a client work with an attorney to ensure compliance with all dates and deadlines.

Magistrate's Hearing

In a divorce case, there is typically a magistrate's hearing prior to the final trial before a judge on the merits of the case. Magistrates are similar to judges as they can make a recommendation in legal cases although a magistrate does not have as much power as a judge. The judge makes the final decision based on the magistrate's recommendation. Law enforcement powers of a magistrate are limited and more akin to those given to an administrator. Usually magistrates handle small or minor cases and have smaller jurisdiction. Magistrates do have some powers as enumerated in a statute including issuing subpoenas, administering oaths to witnesses, ruling on the admissibility of evidence, examining witnesses, managing the hearing as required, recommending contempt proceedings or other sanctions to the court, and recommending findings of fact and conclusions of law.

A magistrate's hearing is for issues including: child support, custody, and alimony. The recommendation from the magistrate, if approved by the judge, is temporary until the final trial before a judge. In a hearing of this nature, the magistrate's role is to make a recommendation to a judge based on the facts of hearing as to temporary custody, child support, alimony, and attorney's fees. Judges are very likely to adopt the magistrate's recommendation and further, in a lot of cases, the recommendation of a magistrate becomes the basis for final rulings by the judge. Magistrates are only dealing with the absolute bare necessities in this type of hearing and won't decide on non-basic or non-emergency issues (i.e. vacations). Magistrates have a great deal of discretion in these hearings when applying the rules of evidence and with regard to how the recommendation to the judge is made, as to what facts are taken into consideration. The hearing typically takes about three to four hours for examination of witnesses, documents, health insurance, etc. The temporary order issued after the magistrate's recommendation is approved by the judge continues until the final judgment unless there are emergent needs or a violation of the order.

A hearing with a magistrate is fairly involved and still requires a lot of documentation and other evidence which parties have to supply to each other during the discovery phase of a civil court case. Both parties in the divorce are required to submit a financial statement, as well as documents and exhibits and provide opposing counsel and the court with the financial statement and exhibits. These disclosures will have to be made by a certain date which will be set forth in the scheduling order. This is so both parties and the court have adequate notice of the information prior to any hearing or trial.

Child support, alimony, and sometimes attorneys' fees will also be determined in at the magistrate's hearing. Temporary alimony is ordered to maintain the status quo and provide minimum funds (mortgage, utilities, and etcetera). Parties with children will be directed towards parenting classes and mediation. The court wants to ensure the parents will be able to work together for the benefit of their children.

Custody

Custody will be awarded as sole or as some other variety of physical and legal custody. Legal custody is having responsibility for making decisions about the important things in the child's life including where to go to school, religious instruction, psychological counseling, when to go to the doctor, etc. The typical default is for both parents to share legal custody (joint legal custody). The magistrate and/or judge could designate one parent as a tie breaker if the parents disagree. Physical custody refers to where the child lives on a regular basis. It can be shared by both parents. Again, the default is typically shared or joint physical custody. This does not necessarily mean a 50/50 split on time. One party can still get child support if there is shared or joint physical custody. Sole custody and visitation is usually an extreme decision by the court. It is possible for one parent to have sole physical custody but there is also shared legal custody. An example of sole custody and visitation includes the child seeing one parent every other weekend. Typically, sole custody is given because the other parent has a history of addiction, domestic violence, abuse/neglect of the child, etc.

The magistrate's recommendation is very important and many times becomes the foundation of the judge's final ruling. If a party does not agree with the magistrates recommendation and is approved in an order by a judge, then the party who objects to the ruling (appeal) by file exceptions within 10 days of the recommendations being placed on the record or served. An exception to the magistrate's recommendation must be in writing and explain the error with particularity. If the party who brings exceptions must have raised the issue at the Magistrate's hearing and as well as specifically set forth in the exception then the proposed exception is deemed to be waived. The court may decide on the exceptions without a hearing unless the request for a hearing was filed with the exceptions. The magistrate has made recommendations based on the evidence before him/her, but the judge has the discretion to accept additional evidence. A hearing before the judge who holds the hearing exceptions is required to hold the exceptions hearing within 60 days of the filing of the exception unless parties otherwise agreed in writing.

Contact Fred Antenberg, an attorney in Columbia, Maryland, with over 30 years' of experience in Family Law for a free initial consultation and for further advice regarding your divorce. Call him at 410-730-4404.