If a divorce or 209C case is pending, the court, sooner or later, will schedule what is known as a pre-trial hearing. Sometimes this is also referred to as a pre-trial conference. This will happen either on the court’s own initiative once a complaint has been on file long enough, or following a case management conference. At a case management conference, the parties and judge will address a timeline for the case – the appropriate timeline for a discovery deadline and a pre-trial hearing, among other matters. The parties can, by stipulation, avoid appearing at a pre-trial hearing by submitting a written agreement that specifies the specific dates for the case timeline.
In either event, the pre-trial hearing will be scheduled unless the parties present a full agreement beforehand. There is frequently a lot of work to do before a pre-trial hearing. The discovery process needs to be completed. Updated financial statements will need to be filed at the pre-trial hearing. Some judges ask for proposed judgments to be filed. At least one week before the pre-trial hearing, all parties and counsel are supposed to meet in person to discuss the case and the potential resolution of the issues in dispute. If the parties remain at odds over one or more issues, a pre-trial memorandum outlining the respective positions of the parties as to the disputed issues needs to be filed with the court. The memorandum also will likely need to address other matters, all of which are outlined in the pre-trial notice and order that specifies the requirements of the memorandum. Pre-trial requirements vary from county to county and even from judge to judge – it is critical to review the pre-trial notice in every case to ensure that all requirements are being met.
At a pre-trial hearing, the judge will have read the memoranda that the parties provide. Each party frequently gets the opportunity, via oral argument at the hearing, to emphasize certain points or address matters not contained in the memoranda. The judge will likely ask questions about the case so it is important to know every aspect of it going into the hearing. In many cases, the judge will provide some feedback regarding the contested issues. The feedback is often couched in hypothetical terms as no evidence has been presented, but oftentimes the feedback allows the parties to understand which factors the court may rely on and which factors the court is inclined to disregard. This can sometimes help narrow the issues in dispute and push the case towards settlement.
Depending on the status of discovery, the complexity of the issues, or the posture of the case, the court following a pre-trial hearing may schedule another pre-trial hearing, a status hearing, and/or trial dates. Or, if the parties have an agreement in hand at the pre-trial hearing, they can present it to the court on that date and obtain a judgment of divorce nisi. Regardless, it is very important for the parties to be well prepared for the pre-trial hearing, which is one of the most critical dates in a case.