The Preliminary Conference
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In New York State, all divorce cases require a Preliminary Conference, which generally occurs at your first Court appearance. At the Preliminary Conference, litigants and counsel are required to fill out a Preliminary Conference Order. The Preliminary Conference Order requires the signature of both spouses and their lawyers. It identifies the unresolved issues that you will litigate. Any issues that are either settled or not addressed in the order may be waived in the future. It is important to take great care in reviewing this document prior to your signature. Never agree to something in the Order that can be used as a bargaining chip in the future, unless you have a specific reason for doing so. For example, many people agree to physical custody at the Preliminary Conference. Others agree that certain property is premarital, while I have seen individuals waive maintenance payments. I have no problem advising my client to settle certain issues at the Preliminary Conference, but settling should only be done to set the tone of the case or in exchange for a concession in return.
The tone of the case is extremely important. Do not go to the Preliminary Conference and start a war, especially if you and your spouse got along in the past. Agree to things that you know would make your spouse happy and more readily agree to something you want. For example, maybe you are not looking for residential custody of your children, but you know that your spouse is extremely nervous about this issue. In the spirit of settlement , your spouse may waive the enhanced value of your advanced degree or may agree for you to remortgage the marital residence in return for a concession on residential custody. While these are just hypothetical examples, my point is that there is something to gain from every decision you make during your case. Following the exact same strategy in every case is a disservice to the client. You need a lawyer who can think on his feet, analyze the situation, and give advice based on YOUR situation.