Wednesday, March 17, 2010

What Happens at a Family Court Status Conference?

The court automatically sets a Status Conference (STC) in all divorce cases to take place approximately 3 -4 months after the case is filed. When parties choose to use mediation to resolve the issues in a divorce or legal separation, the mediator can file a stipulation (agreement) postponing ("continuing") the STC for up to a year to allow the parties an opportunity to finish through mediation without going to court.

Parties that represent themselves can usually postpone an STC a couple of times by calling the court clerk on the phone (it can vary by department). Eventually, the court won't let that happen anymore and will require you go in to the courthouse for the STC. This can take a half-day or more. Typically, parties can personally appear once or twice more before the court will set a Case Management Conference ("CMC" - which is not much different than an STC, but parties will typically see a judge instead of the facilitator). The court does not decide anything substantive about the case at these hearings (who gets what, etc.), but uses them to keep track of case progress.

The longer a case goes, the more pressure parties will likely get from the court to finish up. This usually comes in the form of setting more frequent court dates and deadlines. Sooner or later, the court will assume that the parties will not --or cannot -- finish on their own, and will set a trial date or dismiss the case altogether.

Tuesday, March 2, 2010

LEGAL SEPARATION vs. DATE OF SEPARATION

Many callers believe they are "legally separated" after a Petition for divorce or legal separation has been filed with the court. This is a common misconception because the court forms require a "date of separation" to be entered. It is important to understand the difference between a legal separation and the date of separation.

A "legal separation" is a formal court procedure that is virtually identical to divorce. It divides the parties' assets and debts, sets support and children's issues, but in the end the parties are still married to each other. This is commonly done when couples are not sure if they want to divorce or not, for religious reasons, or so one person can maintain insurance benefits through the other's employer.

The "date of separation" is used in both divorce and legal separation procedures. It marks the theoretical end to the marital relationship, but not a final divorce or legal separation date, which the court orders at the end of the process. The date of separation is used to calculate the length of the marriage. It may also be relevant for certain financial matters such as characterization of community property versus separate property. The date itself can be hotly contested in some cases, but when parties participate in mediation the date loses most real significance if the parties are able to simply agree upon financial matters with the assistance of the mediator.