The first court appearance in most litigated divorces in New York is the Preliminary Conference. In other states, this initial appearance is called a case management conference.
The preliminary conference serves several purposes. One of the primary purposes of the preliminary conference is to identify the issues that are in dispute. Since not every issue in the divorce will be contested, at the preliminary conference, parties stipulate as to those issues that have been resolved. If, at the conference, an issue has been listed as resolved, it cannot be later litigated. The agreement as to the contested and resolve issues is contained in a Preliminary Conference Order.
Until no fault divorce was adopted in New York, if marital fault was in dispute, a grounds trial would have been immediately scheduled at the conference. However, with the advent of no fault divorce, most judges have taken the position the issue of whether a marriage has irretrievably broken down is not triable.
At the preliminary conference, the parties also have the opportunity to provide the judge with their respective theories of the case. Some judges, armed with an overview of the case, will use this conference as an opportunity to initiate settlement discussions. Other judges will simply use the conference as a procedural stop on the way to trial.
In cases involving disputed child custody, at a preliminary conference, an attorney may be appointed to represent the interests of the children and the court may order the parties be interviewed by a forensic mental health professional. In cases involving the division of marital property, the court may appoint experts to value the marital property, whether it be real estate, a pension or an interest in a business.
In addition to identifying the contested issues in the divorce, the preliminary conference serves the function as scheduling the case. A preliminary conference order is issued which sets a timetable for the parties to exchange financial information and other evidence to be used at trial. The exchange of financial information is part of the process known as discovery.
Prior to going to court for the conference, it is important for the litigant to confer with his or her attorney to ensure that everyone is on the same page and in agreement as to the outstanding issues, the litigation strategy and the parameters of an acceptable resolution.