Preliminary Conferences in a Matrimonial Action: What to Know and How to Prepare
Court appearances in matrimonial actions can be harrowing experiences for parties going through a divorce. Divorce proceedings are unlike other civil cases: the litigants are generally required to appear in person (or virtually during the pandemic). They are, moreover, often fraught with conflict, as the parties could not resolve their dispute without a judge intervening.
The Preliminary Conference (“PC”) is a particularly important court appearance. It occurs immediately after either party files a Request for Judicial Intervention (“RJI”)—a form requesting the appointment of a judge to preside over the case. The PC is the first time that the judge deciding your case will learn about you and your family.
What Should Happen Before a Preliminary Conference?
Once an RJI is filed, the Court will schedule a PC within 45 days. At least ten days prior to the PC, the parties are obligated to file with the Court—and exchange with the other party—Statements of Net Worth (the “SNW”). The SNW is a form, sworn under penalty of perjury, that reports on your financial circumstances, including your monthly expenses, income, assets, and liabilities. The parties’ most recently filed tax return, pay stubs, and retainer agreement with matrimonial counsel must be annexed to the SNW.
Prior to the PC, litigants and counsel should consider whether to file a motion for pendente lite relief (meaning support or counsel fees payable during the pendency of the divorce action). For example, the less monied spouse may consider filing an Order to Show Cause for temporary maintenance, temporary child support, or an award of interim counsel fees. The Court rules provide that motions for temporary relief “shall be made before or at the preliminary conference, if practicable.” See 22 N.Y.C.R.R. § 202.16(k)(1).
In advance of a PC, parties in a matrimonial action should also begin gathering financial documents, including tax returns, checking account statements, savings account statements, credit card statements, and brokerage account statements. Under the Court rules, parties are required to exchange these documents with the other party before the PC without the need for a formal document demand.
Finally, the parties should identify issues in dispute and attempt to resolve any uncontested matters.
What to Wear to a Preliminary Conference?
Parties should dress professionally. Men should generally wear a dark suit, tie, and dress shirt. Women should dress in a conservative dress, pant suit, or another business-like outfit. The parties, however, should avoid wearing expensive or ostentatious clothing or accessories. For example, women should not carry a Louis Vuitton bag, and men should avoid wearing Ferragamo shoes. Appearances do matter. Notably, I have personally experienced a client who overdressed for a court appearance, and the judge remarked, “He must be rich; he looks like Mr. Monopoly.” The way that he dressed for a court appearance materially affected the outcome of his case.
What Happens at the Preliminary Conference?
During the PC, the judge or a court attorney will seek background information on the case, including: how long have the parties been married; do the parties have children; what do the parties do for work and how much income do they each earn; and what assets exist. In particular, the court will seek to identify the issues in dispute.
After obtaining a background, the court will then review the Preliminary Conference Order (“PC Order”) with counsel and the parties. The PC Order is a unique document. It constitutes a stipulation (an agreement between the parties), and an order of the court. Because the order is also a stipulation, courts are reluctant to vacate or modify the provisions of the PC Order.
In particular, the PC Order contains sections addressing whether issues are resolved (such as grounds for divorce, custody, equitable distribution, spousal maintenance, and child support). If any of these sections are marked as “resolved,” the parties forever waive the right to contest these issues. In Pappas v. Pappas, 294 A.D.2d 121, 121-122 (1st Dep’t 2002), the Appellate Division, First Department, affirmed the denial of a motion to vacate a portion of the PC Order. The Appellate Division reasoned that the plaintiff had failed to raise grounds to vacate the stipulation because “plaintiff was at all relevant times represented by counsel who had clear apparent authority to sign open-court stipulations in plaintiff's presence, . . . plaintiff was present during the preliminary conference and participated in the discussions . . . , and . . . he was present when the modification was made and initialed by his attorney in open court.” Id. Hence, it is essential that counsel and the parties examine each section of the PC Order with a fine-tooth comb.
The PC Order also contains provisions setting a schedule for financial disclosure in the case, such as dates to serve discovery demands, dates to exchange documents, and dates for depositions.
The PC is not a trial. Generally, the parties will not be required to give testimony. The lawyers do most of the talking. It is advisable that the parties speak only when directly addressed by the judge or court attorney. Notably, the parties should anticipate speaking directly with the judge during the PC. Under the Court rules, “the judge personally shall address the parties at some time during the conference.”
The ultimate outcome in your case may rest upon the first impression you make to the judge during the PC. Hence, it is essential that you properly prepare for the appearance, and that you have a trusted counsel to guide you through the process. If you have questions about the matrimonial process or preparing for a PC, please contact The Law Offices of Andrew T. Coyle.