First, if your case is headed to divorce trial in court that means you’re about to enter the toughest method of resolving your separation. Only a small portion of divorce cases actually go to trial, despite what you may see on television. Some may think divorce trials make good entertainment because of how much drama happens there; that’s why divorce trials may seem to be more common than it really is.
It’s estimated that 95% of divorces are settled outside of court. If a divorce case goes to trial, that means you’ve likely exhausted all other cooperative methods like working with a lawyer or using mediation. Trials mean that issues of the dissolution need to be resolved by a third-party judge who gets to listen to the facts and make a reasonable decision that may please one party, both, or none.
What is the Benefit of Going to Trial?
The point of going to trial is to get a judge to decide on issues for you. These are issues that you and your soon-to-be-ex-spouse cannot successfully negotiate or compromise on outside of court. So, the benefit is that after long meetings with your lawyers to figure out how to settle a disagreement, you will have a judge make that decision for you and it will finally be over. That is the benefit.
There are few other things that you may want to consider before heading to trial:
- Can you afford to put out the time and money needed to cover the expenses of trial?
- Is it worth putting your family/children through this stress?
- Are you going to be okay with having someone that doesn’t know you, make life-changing decisions for you?
- Can your emotions stand the stress of trial?
The disadvantage of trial is uncertainty. Your judge may rule against you, contrary to law, and turn your life upside down. Trial is risky, and more often than not you do not get everything that you want.
What Does a Divorce Trial Judge Take into Consideration?
When mediation, collaboration and negotiation are no longer good options for you and your spouse, a trial will aim to resolve your case. Before a divorce case will be heard in court, here are the necessary steps to take:
- File the case. This means that your lawyer must fill out paperwork to dissolve your marriage. This stage of filing also gives you the opportunity to submit any paperwork for requesting spousal support, property and debt division, restraint orders, child custody, visitation, child support, and attorney fees. California is a no-fault state which means that you don’t need to prove that there was any wrong-doing in the marriage.
- Serve the case. Usually a third party, hired messenger serves the non-filing spouse the case documents. This person will have to review the content in the documents and respond or make changes before the deadline. If there is no response, by the served spouse, to the questions, the court will admit all submitted facts to be true.
- Discovery at the beginning of the case. No matter what information was submitted on the filed documents, each party’s lawyers will conduct discovery to gather all necessary facts for the case to proceed. During this phase, witnesses may be called on to testify some facts. It could be friends, family, neighbors or anyone who may have witnessed things that happened between you and your spouse. These are called lay witnesses. Experts may be called in to value property or assets, like houses or businesses, to get an accurate amount to deal with in the trial. Other experts include those who can talk professionally about a person’s mental or physical health, or testify about a child’s welfare.
- Mediation or Settlement Discussions. The Judge assigned to your case will likely require that the two of you engage in meaningful settlement discussions. This may be a mediation or some type of settlement conference. If this fails, you continue along the tumultuous process of litigation.
- Possibility of a Pretrial Conference. Your local family court may set a pretrial; this is where you would let the court know how many issues remain unresolved and how long you expect the trial to take. In the pretrial, the counsels may decide on certain things like accepting certain evidence or not.
- Preparing witnesses and testimonies. In this step, all of the approved witnesses will be prepared to give a testimony. They will be informed of some of things that will be asked. The way in which witnesses talk, dress, act, will make an impact on the case. As for the spouses, they will also need to prepare their testimonies for every area (spousal support, child support, attorney fees, etc.).
- Possible Settlements. While the parties are preparing for the divorce trial, the lawyers will likely still be working on getting a settlement offer from the other party. During this time, it is possible for some unresolved issues to be settled before the actual trial happens.
- Divorce Trial
Step 8: Trial
It is very important to know beforehand what the courthouse rules are. You don’t want to be waiting in line for so long, just to find out that you have to return to your car to put away your nail clippers or cell phone. Not to mention, the parking garage is usually a few blocks away from the courthouse!
Once you’re past security, you’ll need to wait for your case to be called. Every Judge handles his or her courtroom differently. No trial is conducted exactly the same way. So your lawyer will have to be familiar with that Judge’s process and methods. Your witnesses will be sworn in, sent back out into the hallway and not allowed to discuss their testimonies with each other or anyone else.
In the courtroom…
- The judge will start the divorce trial by asking about any preliminary matters. Generally, the lawyers will have things to tell or ask the judge before the trial begins.
- Next, both sides of the party will make an opening statement. Your lawyer will fill you in on this.
- The spouse who filed for the divorce will be the first one to present facts, usually by calling the first witness to testify.
- The witness will likely be cross-examined by the other party. The rest of the first party’s witnesses will be called and cross-examined.
- The other party will then call their own witnesses for testimony and they will be cross-examined as well.
- Documents will be submitted for evidence or excluded.
- The judge may have some questions to clarify.
- Once the final documents and testimony has been submitted, each side will offer a closing argument.
- At the end of the hearing, the judge may make an oral ruling or “take the matter under advisement.” Without an official ruling, you may have to come back to court another day to hear the rulings. The judge will probably write a letter of opinion and have it sent to both attorneys.
The Divorce Trial Order…
- The rulings are not the final step. Once the judge makes a ruling, one of the attorneys must write the judge’s rulings into a court order.
- This final document must then be submitted to the judge for entry and decide on whether there should be an appeal for any ruling. Any objections must be written into the order for the judge to look at and sign.
If the attorneys don’t agree on the wording of the written order, you may need to go back to court to figure it out. If there are no motions for another hearing or an appeal, all you have to do now is to carry out the order. Property is to be sold, refinanced, conveyed, or divided. Visitation orders will be put into effect and payroll withholding orders should be entered. Lastly, attorneys will need to be paid now that it’s all over. Whether you’ve “won” or “lost”, both of you can begin the process of moving on and/or learning to co-parent your children, if you have any.
Unfortunately, the page doesn’t do a good job detailing how emotional or painful a divorce trial can be. Trial is horribly frightening because an impartial judge can devastate a family with bad rulings. And if you’ve ever talked to someone who has gone through a divorce, judges make bad rulings all the time. Make you you think very carefully before going to trial. Ask your lawyer about all the pro’s and cons.