What are the Steps in Las Vegas Divorce Litigation?

Initial Steps

Here are the actual stages of most divorce cases. Although the divorce process is slightly different for each court and each judge, divorces in Clark County, Nevada generally go through a similar process.

It is not necessary for people with an attorney to know and understand each one of these steps – that’s why you hire an attorney. This is for those who want to understand the legal nuts and bolts.

If you are looking for more general and less technical principles of what to expect, look here.

A divorce begins with the initial Complaint for Divorce. Within 21 days of service, the Defendant must file an Answer to the Complaint for Divorce. The Answer to Complaint is usually accompanied by a Counterclaim for Divorce. If it does, the Plaintiff has 21 days to file an Answer to Counterclaim.

One party or the other usually files some sort of Motion for Temporary Orders. This Motion requests various orders that are called ‘temporary’ because they only last while the litigation is ongoing. Some common temporary orders are for financial support, exclusive possession of the marital residence, temporary custody arrangements, and preliminary help paying for attorney fees.

30 days after serving the Complaint for Divorce, both parties are required to provide a set of mandatory initial disclosures pursuant to NRCP 16.2(d). It is a long list, and thoughtful attorneys will contact the other side and try to reach an agreement on which disclosures are actually needed. This saves the parties considerable time digging up documents that are not really needed, and saves the legal costs of compiling and serving such documents. Unfortunately, most attorneys are not thoughtful enough to do this. In fact, many attorneys just ignore the mandatory initial disclosures altogether, which often prolongs the case and sometimes hurts their clients.

Also 30 days after serving the Complaint for Divorce, both parties are required to file a Financial Disclosure Form (FDF). Many attorneys are late to do so, but it is dangerous to be too late. Unlike the disclosures, which are done only between the parties or their attorneys, the judge will see who filed their FDF timely. A party must file an FDF within two days of requesting any financial orders or risk having their request disregarded. A party who shows up to any court hearing not having filed the FDF at least a few days before risks being reprimanded or even sanctioned by the judge.

Within 45 days of the Answer, the parties and their attorneys are supposed to meet in an Early Case Conference (ECC). The ECC is a very useful tool for helping to figure out what the parties agree on, what facts still need to be determined, and what needs to be decided by the Court. If something needs to be determined, it is an opportunity for everyone to figure out how to do so. If there are no real issues, it is a chance to settle the case. The ECC will usually streamline the case, reduce the number of documents that need to be disclosed, help with quicker resolution, and ultimately reduce legal fees for everyone. Unfortunately, most attorneys simply ignore the ECC. This is probably just because they are too busy, but the more cynical will say that it is because attorneys are afraid of settling cases too early and missing out on the legal fees they might otherwise be able to charge.

14 days after the ECC, the parties should file an ECC Report with the court containing what was discussed and agreed on. Since most attorneys ignore the ECC requirement, they likewise ignore the ECC Report requirement. A few attorneys, bizarrely enough, file an ECC Report even though there was no ECC, stating within what their positions would have been had there been an ECC.

One to two months after the Answer to the Complaint for Divorce is filed, the Court will hold a Case Management Conference (CMC), in which both parties and their attorneys come to court and discuss the case with the judge. Attorneys who have met and conferred prior to the CMC can usually make good use of the time to ask the court to resolve any outstanding questions and inform the judge how they think the case can be resolved, or if it can’t be resolved, what is needed for trial. This is relatively rare, however. Many attorneys barely look at the case until the morning of the CMC, and come to court completely unprepared to do anything except to sling some mud at the other party and ask for a trial date.

Discovery

At some point most attorneys will use discovery to find missing evidence and information. There are 5 primary forms of discovery:

1. Subpoenas to third parties for documents;
2. Requests for the Production of Documents;
3. Interrogatories;
4. Requests for Admissions; and
5. Depositions of witnesses.

Subpoenas to third parties require those parties to produce documents. A subpoena is more formally called a Notice of Deposition Duces Tecum in which the deponent does not have to appear if certain documents are provided beforehand. Most of these Notices of Deposition Duces Tecum have a date for the deposition, but that date actually serves as the deadline for producing the documents. No one ever actually appears at that date, even if the documents haven’t been produced. The most common parties to subpoena in a divorce are banks and similar financial institutions which have documents showing the parties’ finances. Banks and other third parties generally ignore the deadline and deposition date and simply produce the records on their own timetable. Although you could file a lawsuit against the third-party alleging they violated the subpoena, the time it takes to do so is usually well past the time the third-party will produce the documents on its own. Attorneys are authorized as officers of the court to issue subpoenas without any court involvement. Non-attorneys representing themselves can ask the court clerk to issue a subpoena on their behalf. Third parties are entitled to receive a small fee plus the costs of complying with the subpoena. If there is a lot of research or investigation involved in providing the documents, or if there are simply a lot of documents required to respond, the cost of the subpoena could be substantial.

A Request for the Production of Documents is sent to the other party and requires that party to produce documents within 30 days. Most attorneys will extend that deadline for each other unless there is a reason not to do so. This is the most common and probably most useful form of discovery. The requests must be ‘proportional to the needs of the case.’ Typical requests are for bank statements, credit card statements, and other financial statements.

Interrogatories allow a party to ask the other party up to 40 questions. The other party must respond, under oath, within 30 days, although most attorneys will extend that deadline for each other unless there is a reason not to do so. Interrogatories are sometimes useful, although they are not as useful as they might first seem. Interrogatories are typically used to have the other party list their assets and debts under oath.

Requests for Admissions require a party to admit or deny up to 40 assertions. A party has 30 days to respond, although again that deadline can be and usually will be extended. The most common and probably most efficient use is to identify what facts are admitted to and what facts are actually in dispute. Some people use the Requests for Admissions as a way to bombard the other side with a list of accusations, which might feel good to send but results in very little information when the other party simply denies all of the accusations.

Depositions (distinct from the Depositions Duces Tecum described with subpoenas) require a party or a third-party to appear and orally answer questions under oath. A court reporter is present to record the questions and answers. This is extremely useful for various reasons. First, when asked questions live, the person does not have time to fabricate an evasion or lie. Second, there can be a back and forth with questions and answers that usually produces more information than could be obtained with multiple sets of interrogatories. Third, because there is no judge, an objection usually does not prevent the person deposed from having to answer. Depositions are also relatively expensive: the cost of a court reporter, plus the cost of the court reporter’s transcripts, can add up quickly even for short depositions.

Diligent attorneys will begin using discovery soon after receiving the initial disclosures. Less diligent attorneys will wait until a month or two before trial before using discovery. Even though discovery is supposed to be proportionate to the needs of the case, most people will still find that responding to discovery is very burdensome. Some attorneys zealously try to keep the other side from getting the documents and information they need. Sometimes attorneys use discovery as a weapon to harass and burden the other side.

On occasion, one party will not comply with discovery requests. This usually leads to motions filed with the discovery commissioner to determine what discovery is legitimate and what is not.

If everyone cooperates, discovery is usually relatively painless. If not, discovery can become the most difficult, time-consuming, burdensome, and expensive part of a case.

Final Resolution

Sooner or later, there are attempts to settle the case. Sometimes the parties settle the case between themselves and tell their attorneys what that settlement is. That is especially common if the attorneys are not very attentive to the case or seem to be running up expenses for no reason. Other times the attorneys are able to settle the case, either through letters, phone calls, or in-person meetings. The parties, however, always have final say as to whether any settlement offer is extended or accepted.

If the parties and the attorneys cannot settle the case themselves, they will sometimes use mediation – hiring a neutral third-party, usually another attorney or a judge, to help each side see the value of compromising their claims and reaching a resolution. The most common time to settle a case is about a month before trial, although sometimes cases settle much earlier and sometimes cases settle only minutes before trial begins.

Settlement can occur at any time, from before the initial Complaint for Divorce all the way through the court’s decision. Once there is a settlement, it is sent to the court for approval and the case is over.

If the parties cannot settle, there will eventually be a trial after which the judge will make a decision. The trial, also called an evidentiary hearing, is much like people see on television, with witnesses being sworn in, sitting in a witness box, and offering testimony for the Court. Documents are usually offered into evidence through the testimony of the witnesses. There is no jury in family court.

After the judge’s decision, the parties can appeal. But an appeal is not a complete do-over. The appellate court will not allow the parties to submit any more evidence or make any claims not made in the trial. Instead, the appellate court will look only at the evidence admitted at trial and the testimony offered, and decide whether the judge correctly applied the law to the evidence presented.