Massachusetts divorce lawyer Carmela M. Miraglia discusses Pretrial Conferences and Status Conferences Massachusetts Divorce in Step 8 of the Lynch & Owens Divorce Series.
As a divorce attorney who frequently explains legal concepts to layperson clients, I have observed that certain events that occur during the divorce process seem to puzzle an inordinate number clients. For example, service of process through a constable or process server always seems to confuse clients. Another set of confusing events are Pretrial Conference and Status Conferences. What are they, what is their purpose, and what usually happens are these events?
Table of Contents for this Blog
- Pretrial Conferences: What Are They?
- What Issues are Discussed at the Pretrial Conference?
- Status Conferences: What Happens Next?
- Timing: How Pretrial Conferences and Status Conferences Affect the Schedule
Pretrial Conferences: What Are They?
At the end of the day, a divorce is a lawsuit. A lawsuit that involves your children, family secrets and personal financial details, but a lawsuit nonetheless. Pretty much all lawsuits in all courts feature an event like a Pretrial Conference. The Pretrial Conference is a hearing scheduled by the court midway through a divorce (i.e. between 4 and 12 months after a complaint for divorce is filed) at which time the presiding judge determines if the case is likely to settle or go to trial, along with the legal and procedural issues that may be preventing settlement.
The Pretrial Conference itself is rather unremarkable, a 20-minute hearing when lawyers (or self-represented parties) explain the status of the case to the judge, provide information to the judge, and schedule the next event on the court’s calendar. In cases involving lawyers, Pretrial Conferences are important events because they require attorneys to schedule 4-way settlement conferences, draft memos to the court outlining the contested and uncontested issues, and generally review the case with an eye towards both settlement and litigation. Unrepresented parties are bound by the same obligations, which are set forth in the judge’s “order before pretrial”, but pro se parties often fail to read the pretrial order, schedule settlement conferences or draft memos. Accordingly, if no attorney is involved, the Pretrial Conference is less likely to be a productive event.
What Issues are Discussed at the Pretrial Conference?
The substantive issues discussed at a pretrial conference generally focus on the custody, support and/or asset division-related issues over which the parties are at an impasse. A good divorce lawyer understands that a judge does not require that there be perfect agreement between the parties on every “uncontested” issue at the pretrial stage. Rather, it is the attorney’s job to prioritize the issues for the judge. For example, two parties may agree generally on a basic parenting plan, but still have not finalized holiday or vacation schedules. A lawyer would probably explain the status as follows: the parties appear to have basic agreement on the parenting plan, subject to working out some details, and it does not appear that custody and parenting time will prevent settlement at this time. In other words, disagreements over custody are not the issues that are preventing settlement in the case.
For contested issues that are preventing settlement at the time of the pretrial conference, the attorneys are expected to explain to the judge whether the issues are factual, legal or procedural. For example, perhaps additional records or depositions are needed to clarify a factual issue. Or perhaps there is disagreement over a legal issue, such as how the Massachusetts Child Support Guidelines apply to one party’s self-employment income or how a particular asset should be divided under Massachusetts law. After reading each attorney’s memo, and listening to each attorney’s oral representations during the hearing, the judge will offer the parties and counsel feedback to try to spur settlement. The process of a judge offering useful “feedback” at the pretrial conference often seems like more art than science. The judge must avoid “prejudging” the case based on the tiny snippets of evidence each attorney presents at the pretrial conference, but must nevertheless offer enough insight and opinion to spur settlement. Obviously, parties and counsel should always listen carefully to discern if the judge favors one party’s take on a factual or legal issue; even a small “nudge” from the judge towards one party’s position is often enough to resolve a dispute and facilitate settlement.
Status Conferences: What Happens Next?
Many cases settle at the Pre-Trial Conference through the entry of a separation agreement. For those that do not settle, however, a subsequent status conference will likely occur. There are multiple reasons for the court to schedule a status conference. For example, if the attorneys explain that the parties are close to settling, but need some additional time to exchange proposals, the judge will often schedule a status conference in 60 to 90 days. Conversely, if the case appears destined for trial, many judges will schedule a status conference at which they expect the attorneys to submit detailed trial plans, resolve any final discovery disputes, and generally get organized for the impending trial.
The main advantage of status conferences is their flexibility. In Massachusetts, it is not uncommon for Probate and Family Court judges to experience delays in scheduling pretrial conferences of 6 to 9 months. The same judges can often schedule a status conference within 30 to 90 days. Some status conferences include multiple deadlines that parties and counsel must comply with; other status conferences have no agenda at all, representing little more than a chance for the judge, attorneys and parties to check in and reexamine the status of the case.
Timing: How Pretrial Conferences and Status Conferences Affect the Schedule
Once a case has been “pretried”, the parties and counsel are on notice that they must start making progress towards settlement or a trial will soon be imminent. Parties who have had 2 or 3 status conferences after the pretrial conference may be near the point of no return. At some point, the judge will call a stop to the parade of hearings and schedule the matter for trial, at which point parties must decide: are they going to settle or go to trial? In short, if the pretrial conference represents the “halfway mark” of a typical divorce, each subsequent status conference represents an additional step towards trial. There is no hard and fast rule for when the status conferences will stop and trial will follow, but divorce litigants who have been through a pretrial conference and an additional status conference should be on notice: it is either time to settle or trial is imminent.
About the Author: Carmela M. Miraglia is a Massachusetts divorce lawyer and Massachusetts family law attorney for Lynch & Owens, located in Hingham, Massachusetts and East Sandwich, Massachusetts. She is also a mediator for South Shore Divorce Mediation.