What Is a Preliminary Divorce Hearing?
A preliminary hearing (sometimes referred to as a case management conference) may provide a road map for your divorce. During these hearings, judges will typically lay out what you have to do as you move forward and provide deadlines for when you’ll have to complete the required steps. The hearing also provides the court with the opportunity to familiarize itself with your case.
Courts usually schedule preliminary hearings for soon after the initial divorce pleadings are filed, including the divorce petition (also known as a “complaint”), the response (or answer) to the petition, and a reply to the response, if necessary.
There’s a lot more to the divorce process than court appearances, however. For example, divorce discovery is a significant part of any contested case. The discovery process is basically the method for information gathering and is usually centered around the spouses' finances—although it’s not limited to that subject. The court will address discovery in the preliminary hearing.
In addition to discovery, the court may act on items that may require immediate attention, such as any requests for temporary support or a temporary parenting plan and visitation schedule.
What Happens During a Preliminary Divorce Hearing?
How a court conducts the hearing can vary from state to state, and even from county to county. More often than not, the spouses will appear in court with their attorneys—or alone if they’re not represented by counsel. Although many judges conduct the hearing themselves, it’s not unusual for the judge’s law clerk, or sometimes other court personnel designated by the judge to handle the hearing.
Frequently, the hearings take place in the courtroom. Some judges opt to have them in their chambers (private offices). Others may occasionally choose to do everything by phone conference. You should expect that your hearing will last anywhere from 15 to 30 to minutes, depending on the complexity of the case. Although the hearing itself may be quick, you may have to wait much longer to have your case called. This will depend on how busy your local courthouse is—you may only have to wait for one or two other cases to be heard before yours, or 10-15 cases in a busy location, like New York or San Francisco.
As a rule, spouses don’t have to speak at preliminary hearings, unless they’re representing themselves. The attorneys typically interact with the court. You may have to testify, however, if you’re seeking emergency relief, like a temporary order of protection (usually seen if there are allegations of domestic violence or child abuse).
One of the primary purposes of a preliminary hearing is scheduling. For example, the court will often set a deadline for the spouses to complete their preliminary financial disclosures. The judge may also set deadlines for divorce discovery. These are normally firm dates, unless something occurs that would warrant an extension of time.
At the hearing, the court will also ascertain whether the spouses anticipate using expert witnesses, like real estate appraisers or forensic accountants. It will set a date by which the spouses must exchange experts’ reports.
It’s likely that the judge will also schedule an early settlement panel (ESP). This is where the spouses and their attorneys meet with two or three volunteer family lawyers who will assist them in attempting to settle their differences. Normally, the ESP date will be shortly after discovery is complete.
Items Needing Immediate Attention
As indicated above, during a preliminary hearing, a judge can address issues that need prompt attention and grant temporary relief, if necessary.
In dealing with requests for temporary orders, courts typically strive to maintain the status quo, at least until it can more thoroughly address the issues at a later date. Let’s say one spouse was paying the household bills up to the divorce, but then decided to stop. The court will likely order that spouse to continue paying those bills, for the time being. Similarly, a court may stop a spouse from changing existing parenting time (visitation) arrangements.
If custody and parenting time is an issue in the case, the court may order the spouses to attend a parent education class, to learn about the effects of divorce, particularly on children. (Some states, like New Jersey, require this.) The court may also order custody mediation, if the state’s divorce laws don’t already mandate it.
The Preliminary Divorce Hearing Order
When the hearing ends, everything that was agreed on, or decided by the court, will be included in an order that the judge will sign. Frequently, there are some additional items inserted in the order.
For example, many state laws provide for restraining orders to take effect when a divorce is filed, called automatic temporary restraining orders (ATROs). These ATROs automatically bar spouses from taking certain actions. However, even in states that don’t have these laws, you’ll often find the same or similar prohibitions contained in the judge’s preliminary order. Some of the usual prohibited activities are:
- selling, transferring, or otherwise disposing of marital real estate, or encumbering marital property with mortgages or other liens (other than ones that already exist when the divorce is filed)
- transferring, disposing of, or concealing personal property, including bank accounts, retirement accounts, automobiles, and so on
- incurring debts, including borrowing against retirement accounts
- removing a spouse or children from medical insurance coverage, and
- canceling or changing the beneficiaries on insurance policies.
Courts or state law may provide an exception to these prohibited acts if they are done in the normal course of business, or are necessary to pay household bills or attorneys’ fees, or if the spouses mutually agree to them.
Once the judge signs a preliminary order, the spouses are bound by its terms. You can see a sample New York order here.
If you’re interested in learning more about Preliminary Divorce Hearings, you should consult with an experienced divorce attorney in your area.