How to Survive Court

Over the last 20 years, one of the most common – and understandable – questions we have from clients is “Do we have to go to court? What’s going to happen in court?” As part of the Cutting Edge Issues seminar Attorney Pitman presented for Massachusetts Continuing Legal Education in February of 2016, we prepared this explanation of the role court plays in family law cases and what you can expect.

What should I do to get ready?
One thing Don will ask you to do is prepare a financial statement. If you make over $75,000 a year, you're required to complete a nine page long form. A copy of this form can be found here. If you make less than $75,000 a year, you complete a short form. A copy of that form can be found here. Perhaps the most important thing is to realize all amounts are listed weekly on both forms. That means if you pay a bill monthly you divide that amount by 4.3; if you paid twice a month you divide the amount by 2.15. The same applies for your income. If you are a paid employee who is paid twice a month, divide your salary by 2.15. It's also important to provide both your last paystub and your W-2 for the last tax year that you have one available. There are special rules that apply to all self-employed people, or people who own their own business. In those circumstances, special schedules are filled out that list all of the business expenses as well. We also have documents that need to be completed in the event you own a rental property or receive rental income.

In an ideal world, these documents should be received no later than three days before your hearing. This allows counsel to review them, make any necessary adjustments that are needed, and possibly exchanging with the other side. Our experience is that we will review the financial statement with you carefully, obtain any back up information we feel that we need, and then have it ready for your signature at court. Please note when you sign the document, you sign it as true and accurate under the pains and penalties of perjury.

In addition to submitting a financial statement you should also make sure that Don has any additional materials that are required to help prove or disprove your case. Generally, any documents that you want to have put before the court need to be provided to the other side at least one day before the hearing. Therefore, we ask that you give us copies of anything you believe the court may need to see, more than a week before. We will also often isolate the afternoon before court to make sure we can deal with any urgent issues and be certain that everything is fully prepared for the following day.

What will happen once we get to court?
What happens next depends largely on your circumstances. They may request that your case go to probation. Probation’s job is to assist the parties in seeing if resolution of the matter can be obtained by face-to-face negotiation. Sometimes the assigned probation officer requests the attorneys come in by themselves, or they will suggest that both attorneys and parties come in to meet together. We will often request one or the other depending on the individual circumstances of your case. Having worked with the probation officers in Lawrence and Salem probate and Family Court for many years, we can certainly say they have proven to be excellent resources in resolving cases. If you are working with probation and cannot reach an agreement, the probation officer you have been working with will write a directive- a summary of your meeting to be reviewed by the judge, with recommendations on what the judge should do based on your time spent with probation- which you will be allowed to review.

In situations where both parties have attorneys involved, some judges will not require your case to go to probation, but rather ask the attorneys to bring whatever they can to a resolution. It is also not uncommon for us to negotiate a resolution of the issues with the opposing party prior to arriving in court. If an agreement can be reached either through probation, with the attorneys, or by negotiating with the other side directly, the agreement is put in writing to be signed and brought to the judge for approval.

We’re going before the judge. What happens in the courtroom?
While each courtroom in the Commonwealth is different, there are a few common pieces you should know.

One thing you must do before you get into the courtroom is silence your cell phone. If you don’t know how to do that, turn your phone off completely. Electronics are generally not allowed to be used in court and if they go off, the court officers will take it from you and keep it until the end of the day.

When you enter the courtroom, the judge’s bench is directly ahead of you. A clerk will be seated near the judge. There are two tables that are used for the parties that are speaking with the judge, and a court officer or two is in the general area to make sure judges can get information from the parties and to keep order. Most courtrooms have a “bar” that you will cross through when your case is called and the attorneys often are required to sit in that area rather than with you.

Once you are done in probation with either a resolution or a directive, the file is brought to the clerk, who will ask counsel to state what has happened and what is in dispute. If there is an agreement on all issues, the case will likely be called quickly. If there is no agreement, the case will be called in the order it is received in the courtroom; however, if there is some urgent issue that would require you to leave court early (such as child care or a family emergency), please notify Don immediately.

Your case will be called by announcing the last names of the parties. “The Reynolds matter”, or “Reynolds and Fisher, to the tables, please.” In general, the attorneys will stand next to one another at the two tables, and the parties will stand on the outside. Each party is asked to identify themselves for the record, and then the presentation begins. 

If there is an agreement, the judge will often inquire as to what has been agreed to by them. Don will provide a summary of the agreement for the judge and the judge will ask any questions they deem necessary. Sometimes, a judge will ask for a clarification or a change, and the parties may step back for what is referred to as a “second call” to give them a chance to correct it. Then the judge will ask a series of questions of you called a “colloquy”. During this, the judge will make sure you have read the agreement, understood it, had the chance to speak with your attorney, believe it is in your best interests (or the interests of your child or children) and that you intend to follow its terms. Then, after confirming you have a next date if you have not completely settled your case, you will be allowed to leave.

If there is no agreement, the attorneys will then argue the case. The individual bringing the motion is heard first, and then the other side is allowed to defend it and there may be times when the judge directs a question to you. If so, you should answer the question directly and without any other comment to the judge. Also, never try to speak over the other attorney or the other party; this is generally cited as one of the biggest criticisms judges have when hearing motions.

Once the motion hearing is done, you will be allowed to leave. If the judge is able to, they will decide the issue from the bench and let you know what they are going to order. However, many cases require the judge to look at certain evidence and consider things. If so, the judge will announce that the matter is being “taken under advisement” and will issue a written order. These orders are normally sent by mail at a later date to your attorney from the court itself.
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