In the zealous advocacy model, lawyers are taught to argue for the best result they can get for a client, without regard to how it effects or damages others. The adversary system is revered as an "engine" for discovering the truth. In theory, if each adversarial attorney pushes as hard as he can for his client, the truth will rise from the fray and justice will result. This model may be necessary and effective in criminal law cases, for instance, but in family law cases, zealous advocacy can escalate hostilities and the family can be injured as a result.
Discovery is that process by which each party learns about the opponent's case. In divorce cases, discovery is most often focused upon information related to finances. In traditional adversarial divorce cases, financial information is obtained by the mandatory disclosure required by the Practice Book, supplemental interrogatories (questions that must be answered under oath), supplemental requests for production of documents, depositions (taking testimony under oath before a court report who transcribes all the questions and answers) and subpoenas issued to third parties to bring documents into court or to depositions. The discovery process, including motions and in-court arguments over what is relevant and "discoverable" can chew up time and money. Discovery can also be used as a weapon to conduct an embarrassing inquiry into an opposing party's finances, activities and associations.
A fully contested divorce may include disputes over custody, visitation, property division and family support. The contest may be over one, several or all issues. The parties may engage in discovery over financial issues or even with respect to their parenting abilities and personal histories. If custody or visitation is disputed, studies may be conducted by court officers and/or private experts retained by each party. If finances are in dispute, expert appraisers and forensic accountants may be engaged by each party. Multiple court hearings, with both lawyers "on the clock", may take place on matters such as temporary custody, visitation, alimony and child support. Depositions are often taken of both parties and other persons relevant to the litigation. Finally, a contested trial takes place with witnesses and experts testifying, leading to a decision on the contested issues by a Judge.
An uncontested divorce is one in which all issues have been agreed upon by the parties. The parties reduce their agreement to writing and it is presented to a Judge at the final hearing. An uncontested divorce can be achieved by the parties working on their own or through mediators and collaborative lawyers as well as lawyers working in the traditional context. Often times, cases which are contested on one or more issues end up being uncontested when the parties settle after a period of adversarial litigation. In fact, the vast majority of divorce cases are settled by agreement. But what occurs in the course of litigation prior to the settlement can be damaging to the family relationships and resources.
Self-represented parties are individuals who represent themselves rather than being represented by lawyers. In Connecticut, individuals and lawyers file forms in court called "appearances." The appearance forms advise the court who will be representing the parties so the court can communicate with the individuals or their representatives. Lawyers cannot appear in court or sign court documents on behalf of clients unless an appearance form has been filed. In the collaborative model, the parties file self-representations appearance forms and their individual lawyers assist them with the paper work and filing. This facilitates an essential term of the collaborative divorce; namely, that the collaborative lawyers will be replaced by adversarial lawyers if the collaborative process cannot achieve resolution.
Final Uncontested Hearing - Judge's Role
When the case is settled, the case will be placed on the court calendar for the final uncontested dissolution of marriage hearing. The Agreement will be reduced to writing and signed by all the parties. The collaborative lawyers will assist their clients in preparing the other documents required by the court. At the final hearing, the plaintiff will take the stand and provide the court with the jurisdictional and foundational facts that the court needs before it can grant the divorce. If the parties and lawyers agree, the lawyers can file appearances (see above) just prior to the final hearing to assist in the court room. The Judge will review the terms of the Agreement to determine whether it is "fair and equitable" to all parties. The Judge may ask questions of the parties. (Unlike some other states, Connecticut Judges are charged by statute with the duty to make sure that all parties are treated fairly and equitably in divorces. Connecticut Judges treat this as a very serious responsibility.) If child support is part of the Agreement, the court will determine whether the Child Support Guidelines have been followed, and if not, whether the parties had a valid reason to deviate from the Guidelines. If the Judge concurs, he or she will make necessary "findings of fact" and grant the dissolution of marriage, incorporating the Agreement into the Judgment (decree).