How does a pretrial hearing work in family law?
Your family law case is scheduled for a pretrial hearing. How can you prepare for this? What’s going to happen?
A pretrial hearing is a key event in a family law case. It’s the point at which many cases are either resolved or placed on the track toward a trial, which is typically the most time-consuming and expensive phase of a case.
Leading up to the pretrial hearing, the parties are expected to have met beforehand. This is referred to as the “4-way meeting,” which is an out-of court meeting between the parties and attorneys, usually at one of the attorneys’ office, at which the parties discuss and try to narrow the issues. Some judges take this requirement so seriously that they will refuse to hold the pretrial hearing if the parties have not met outside of court before the hearing date.
Once you arrive at court on the hearing day, the attorneys typically check in with the sessions clerk, who is essentially an assistant of the judge in the courtroom.
The next step is that the attorneys usually take some time to negotiate the remaining unresolved issues in the case if they believe any of the issues can be resolved short of a hearing. The attorneys may or may not ask the parties to join the discussion, depending on their judgement of whether this would be helpful. For example, if the parties’ relationship is strained, it may be best for the attorneys to work among themselves on the contested issues.
Also, for the hearing, both sides are expected to submit a detailed pretrial memorandum that outlines the key information and arguments in the case. The judge will typically read these before hearing the case.
If both sides are able to resolve the remaining issues, the case can move toward resolution. This sometimes requires scheduling a status or uncontested divorce hearing date for the parties to return to finalize the case. This additional time is usually used for negotiating the fine details of the case and drafting and editing the divorce agreement.
If however, there is any significant unresolved issue, the parties have the opportunity through their presentations of the pretrial memorandum and arguments from the attorneys, to present the uncontested issues to the judge.
Judges will sometimes provide feedback on the key issues in an attempt to move the parties toward resolution. For example, a judge may say that given the facts of the case, if the case were to go to trial, a particular result would be likely. Judges usually preface these comments by reminding the parties that the judge’s feedback at the pretrial stage is not a final decision and that if the case were to proceed to trial, depending on the state of the evidence, there may be a different outcome.
Feedback from the judge at pretrial is often helpful because it can be used to guide the parties’ further negotiations. The parties can in some cases use that feedback to make progress on the remaining issues.
However, in some cases, a judge will not provide feedback. For example, if the judge feels like there are significant credibility or factual issues that need to be examined closely at a trial through evidence, the judge may not comment on what the result should be.
Pretrial hearings are also significant because a judge can order the case immediately to trial on that day, depending on the circumstances. Although this rarely happens, it highlights the importance of going to this hearing prepared to address the key issues. An example of when a case may be brought to final judgment at pretrial is if one party does not appear. If that happens, a judge will typically ask the party who is present to submit a proposed judgment for the court to consider, and the court will usually adopt that party’s proposal
After the pretrial hearing, the case can go in several directions. If the parties are close to resolution, the court may schedule another pretrial hearing date or a status hearing date to give them time to negotiate further. And sometimes, depending on the issues, a judge may recommend alternative dispute resolution, such as mediation.
However, when it’s clear that the parties are unlikely to move toward an agreement, the case may be scheduled for trial, which is the final event at which the judge hears and sees evidence and makes the final decision on the case.
A pretrial hearing is a key event: it’s an opportunity for the parties to present their respective positions to the court. And it’s typically the point at which cases are either resolved or scheduled for trial. Therefore, you must be sure that, through your attorney, you’re prepared to effectively present your position so that you can optimize your chances of moving toward your goals.
If you have any questions about pretrial hearings or family law in general, don’t hesitate to reach out to us.