- Steve Rakowski
What is a prove-up and how should I prepare?
The prove-up is the legal procedure to obtain a divorce judgment and make your settlement agreement effective. Here is what you need to know before your day in court.
One of the words you may hear used in your divorce case is “prove-up.” When you hear that word, you know that your case is nearing completion. The prove-up is the legal procedure to obtain a divorce judgment and make your settlement agreement effective. It is a trial, but with both parties supporting the same outcome and no one disagreeing about what information the court gets to hear.
In order for the court to have the power to grant the divorce, it needs (minimally) to hear, through testimony from the petitioner (the person who filed the claim and initiated the lawsuit), the facts that allow the divorce to happen. For the most part, these are the facts included in the “Verified Petition for Dissolution of Marriage” that began the court proceedings (including names, jobs, income, date and place of marriage, and so on). In addition, the court needs to hear enough about your financial settlement to determine that it is “not unconscionable.” This is the legal phrase the judge must say at the end of the prove-up to indicate the court’s approval of the financial settlement.
How the prove-up works
Assuming all the paperwork is prepared and signed, the parties* and the lawyer(s) appear in court at the appointed time and place. Your court appearance may instead be virtual — conducted via Zoom — depending on the court.
Prior to the court appearance your LSR Family Law Group lawyer will have electronically submitted all the documents to the judge. The petitioner’s lawyer tells the judge that the case is ready to proceed and briefly summarizes the nature of the case. At that point, the judge (or court reporter) will swear in the parties. A court reporter will take down what everyone says and create an official transcript, which then gets filed with the court (and you get a copy).
Questions from the petitioner’s lawyer
The lawyer for the petitioner will ask him/her a series of questions to elicit the information that the judge needs to hear (again, the basic information about names, addresses, date of marriage, and so on) to empower the court to hear the case and grant the divorce. Then, in relatively broad brush strokes, the lawyer presents the highlights of the agreement — both parenting issues and financial issues — as well as some procedural things (discovery and fees are typically also included, usually toward the end).
It is important that the judge knows that the parties affirm that they have provided adequate information about the income and property of the other in order to make an informed decision AND that they do not believe it is necessary to make formal disclosures or conduct a fact-finding process called “discovery.” Most of the questions are designed to elicit simple “yes” answers, although the parties are free to answer in more detail if the question is incorrect in some way. (For example: Is it correct that you and [spouse] were married on [date] at [place] and that your marriage is registered in the county of [name]?)
If there are going to be any questions or issues that are troublesome or that need extra attention, you and your LSR Family Law lawyer will talk about them before court on the day of the prove-up to make sure that you are ready for what is likely to happen. If one or both of the parties waives maintenance (i.e., will not get maintenance), then there is a series of questions about the waiver so that the party and the court are both clear that the waiver was intentional and that the party understands the finality of the waiver. Any special or unusual features to the agreement will usually be highlighted in a series of questions to make sure everyone really understands the provisions.
After the petitioner’s lawyer asks her/him questions, the court will ask the respondent’s lawyer if s/he has any questions for the petitioner that s/he thinks the petitioner’s lawyer may have overlooked. The petitioner’s lawyer then will have the opportunity to either ask questions of the respondent or yield the witness to be examined by his/her own lawyer. The goal here is not to rehash everything the petitioner was asked but to just confirm that respondent heard all the questions asked of the petitioner and agrees with all of the petitioner’s answers. Especially important information may be confirmed; for example, in situations in which both parties may be waiving maintenance.
Both parties are customarily asked whether s/he thinks the agreement is fair and equitable to both parties under the circumstances. They will be asked if anyone promised them something that is not in the written agreement or if anyone threatened them to sign the agreement. The lawyer may then ask if the petitioner is asking the court to approve it and incorporate the agreement (verbatim or by reference) into its divorce judgment. There are also always questions about the attorney’s representation of the client and any provision made regarding the payment of any remaining fees and costs.
Sometimes the judge elects to ask his/her own questions, too, and sometimes they seem repetitive. (You may see the judge flipping through the agreement during the question/answer ritual, and that may explain the repetition.)
None of the questions asked of either of the parties can challenge the terms of the agreement or the facts underlying the arrangement. Rather, they are all designed to make sure that the agreement and its terms are clear and that you both willingly entered into the agreement and want the judge to approve it.
If either party says things that are inconsistent with the agreement or that challenge the underlying premises, then the court may stop the prove-up and direct the lawyers to sort things out before coming back to finish the prove-up. This should be avoided because your case will lose its place in line, other cases may be taken while you wait, or worse, the prove-up may need to be rescheduled for another day.
Additional things to know
1. Although the time actually spent before the judge on the case is relatively limited (5 to 10 minutes), you should plan to spend at least an hour to account for unexpected delays (including possible technical glitches in the case of Zoom conferences). Additionally, the use of cellphones is not allowed during the appearance, so make sure the volume is turned off.
2. The court reporter will take down verbatim what everyone says. This written transcript is then filed with the court about 28 days later.
3. Different judges want varying degrees of detail, which may change depending on the court’s case load, requiring flexibility by the lawyer on how to proceed. The presentation approach will differ slightly based on the circumstances at the time. Try to follow your lawyer’s lead.
What happens after the prove-up
At the end of the prove-up, the judge will sign the judgment and the appropriate orders the lawyers submitted. Next, the clerk enters the documents into the electronic case record. In theory, all the records will then be stored in the clerk’s files (hard copies) and the computer (electronic copies). Typically, your lawyer will receive copies signed by the judge usually within a couple of days.
The transcript that the court reporter prepares typically arrives about 28 days afterward, and your lawyer will proofread it, make corrections as necessary, file it with the court, and send you a copy.
When the prove-up is completed, you are not technically divorced until the judge signs your judgment and delivers the copies. Even though the judge may say the words, “a judgment for dissolution of marriage is hereby entered,” according to the law, the divorce is not effective until the judge signs the judgment and allows it to be given to the parties.
The lawyers at LSR Family Law Group make it a point to talk with our clients a day or so before the actual court appearance to run through the questions and address any concerns our client may have about the process. Be assured that our goal is to minimize surprises and deliver what the client wants most — a smooth and peaceful experience.
*The person who is the petitioner must be at court, and the case can proceed without the respondent providing that s/he knows about the court date and has consciously chosen not to be there, but I strongly encourage both parties to attend the prove-up. It’s important, from a psychological perspective and to attain true closure, that each party be present when the judge says the words that award a judgment of dissolution to both parties.