Thursday, October 30, 2014

Timing is Everything

Last post I wrote about how long the process can take.   Now I am going to talk about deadlines to do some of those things in the process.    Because if you miss a deadline, you can be out of luck.   SOL does not just stand for Statute of Limitations in the law.

Now, family law does not have any statute of limitations.   You pretty much can file for divorce any time after you separate.   Same with custody.   In Maryland, you have to ask for child support before the kids turn 18.   You also only get child support back to the date of filing, not the date of separation.   So if you wait 5 years after splitting up with the other parent to ask for child support, you are not getting 5 years of back child support.   But that is not a deadline, it's just a cut off for looking backwards.

Moving forwards, there are lots of deadlines in the process.

Once served you must file your Answer within 30 days.   If you don't file, the case can go forward without you.   You won't be heard by the judge, you won't be able to present evidence.   You won't get ask for anything for yourself.   Because you had the chance to get your issues on the record and the court presumes you chose not to do so by answering.

If you are asking the court to do something, you need to do that in a timely manner.   Usually the deadline to amend any pleadings where you ask for something is 30 days before trial.   However, there may be a different deadline in the scheduling order.   Also, if the trial gets continued out for a year or so and you wait until 30 days before the trial date, the court may not hear you on that issue.   You had plenty of time to file, why did you wait so long?    The other side is entitled to notice that something is at issue.   If you try to hide it so they can't counter, you only look bad to the court.  The court hates people who play games like that.

Maryland is a "you don't ask, you don't get" state.   If you want something ask for it as soon as possible.   Because you can't come back later and say "oh yeah, that swampland in Florida, I forgot that we needed to decide who gets it."   The court is going to say "sorry Charlie, too late, case over."  I actually had this come up recently.   Lady was divorced many years ago.   The pension was not addressed.   She wants her share now.   I hated telling her she couldn't do anything about it.   The case was long over and she had her chance.   Whatever the reason for the omission, it is much too late to fix now.

Discovery (requests for information from the other side through questions and requests for documents) must be completed well before trial.   It's not like tv.   There are few surprises at trial.   You must send your discovery requests well in advance of the completion deadline so the other side has a chance to respond.   You must answer in a timely fashion.   If you don't tell the other side who your witnesses are, they can't testify.   If you don't produce documents that are requested, you can't use them yourself at trial.   I get this one all the time, after we do discovery and the pre-trial statement where I have repeatedly told my clients that if we don't tell them about a witness, we can't use them, the client calls me the day before trial "Hey my cousing wants to testify instead of my brother."    Then they get mad at me when I tell them it doesn't work that way.

If you miss deadlines, bad things happen.  

Monday, October 20, 2014

A Whole Lot of Process Going On

The most common question I get (after how much can I get in child support) is "How long does this take."   The answer does not make people happy.   Court processes are not quick things.   The court wants to make sure everyone involved has adequate notice, then plenty of time to prepare the case.   There is guarantee to a speedy trial in a family law case.   Better to take it slow and easy to better the chances of getting right than rushing to judgment.  

In general, it can take up to a year to have your case heard.   Obviously, no kids, no property, no fault grounds for the divorce it can go pretty fast.   I had one case where the opposing party showed up to file the Answer at the same time we filed the Complaint.   This saved serving the person.   We got a hearing in six weeks for the final divorce.   It was a very amicable divorce and went quite smoothly.   It can be done that quickly if everyone is in agreement.  

However, if you are employing an attorney for anything other than making sure all the paperwork is right, it doesn't go that fast.  

First you have to file the Complaint.   Then the United States Constitution requires due process be afforded the other side.   That means they must have notice of the proceedings.   You would not believe the number of people who come to me and say they want to file for custody/divorce but don't want the other person to know.   Yeah, courts don't work that way.   Notice is a must.   That means serving them.    It would be nice if it could just be mailed, but Maryland requires that if it is mailed, it must be certified mail, restricted delivery, only the Defendant can sign.   The Post Office ignores this and lets anyone sign.   Anyone but the Defendant signs and you have to serve them again.   Personal service, although more expensive than mail is best because you know they got the papers.   If they rip them up or throw them away after that, oh well, that's their problem.

If the person lives in Maryland, they have 30 days to file an Answer to the Complaint (longer times for outside Maryland and outside the US).   Then the court sets a scheduling hearing usually about 1 1/2 to 2 months after the date the person was served.  

At the scheduling hearing, you set trial dates.   Oh boy, does this blow clients' minds.   I just did a couple of scheduling hearings and I am setting trial dates in April in October.   My family teases me about giving me advance notice of stuff.   They just don't get that I set stuff months in advance for court so have to plan ahead for family get togethers so I can tell the court not to expect to see me around those days.  

In Montgomery County where I mostly practice, if custody is contested, they will split the divorce and custody cases, which makes the process longer.   First you set the dates related to custody, then the dates related to divorce.   Usually, the custody case is about 3 months after the scheduling hearing.   Unless you requested a pendente lite hearing (PL hearing) or a custody evaluation.    A PL hearing is fancy lawyer talk for "while the case is pending."  As it takes so long, the court sets an interim hearing to decide certain things like a visitation schedule, temporary alimony, temporary child support and even attorney's fees if the party can't continue the case without the attorney being paid and the party can't pay.   The PL hearing comes about 2 months after the scheduling and that puts the custody case about 2 months later, to give it time to see how things are going.   A custody evaluation is an evaluation by the court of the children and their interaction with the parents.   The evaluator makes recommendations about custody and visitation.   Because the evaluators need time and they are very busy, they need at least 90 days.   So the custody hearing can't be too soon.   Plus they have to present the report before the hearing and give the attorneys' time to prepare a response for trial.

Once custody is decided, then you can get into the divorce.   There is not another PL hearing, but there will be another pre-trial hearing which is one last ditch attempt to settle before trial.   At the pre-trial hearing, you get the trial date for the final divorce.   If there is an agreement, you only need a 10 minute hearing.   If there are still contested issues, the more time you need the harder it will be to find a trial date.   A one day trial is a lot easier to set than a 5 day one.   Also, in Montgomery County, they will not set the final divorce trial date until the parties have been separating at least 12 months.   The court prefers the final grounds to be the no fault grounds.   It's easier to prove, takes less time and affects nothing on the property or financial time.   Saves court time for the real things to argue about -- alimony, pension, who get the house, that fun stuff.    The final decree doesn't say the grounds for divorce anyway.  

But what about emergencies?   Sure you can get in for an emergency hearing, but it better be an emergency if you don't want the court to think you are wasting their time.   What's an emergency?   The judges have made it pretty clear that it means "blood on the floor" someone better be in physical danger.   Or someone better be on the way to the airport to take the kids out of the country.   Anything less and the court might not act.    If it is not an emergency, the court would rather have a full hearing with time to hear from everyone.    Good decisions come from full facts and due deliberation, not rushes to judgment.

It sounds long.   But it works out for the best to take it slow and easy.    Lots of time to settle.   Lots of time to explore the case's weaknesses and strengths and gather evidence.