If you’re heading to a trial in your divorce, you're approaching one of the most difficult ways to resolve your case. Of course, the best scenario is one where divorcing spouses work together—or through their attorneys—to settle all of their issues without going to court.
Once you're facing trial, you've probably invested a lot of time—months or possibly even years—preparing your case. You've also probably spent a lot of money on attorney's fees for your lawyer to investigate, prepare financial disclosures, discovery, and motions, attend hearings, and negotiate. The total time spent and cost involved can really vary from state to state.
For some divorcing spouses, the fact that they've spent a lot of money may encourage them to just keep going, full steam ahead—what's a few thousand dollars more? But if you have several, complex divorce issues, a trial is going to cost you many thousands of dollars more, which may be enough to convince you and your spouse to work together and settle your case. Unfortunately, you can't force a settlement, so if your spouse is stubborn or unwilling to compromise, then you may have no choice but to go to trial.
The majority of cases settle out of court, but many don’t. If you’re going to trial, here’s what you can expect.
Last Ditch Efforts to Settle
Countless cases that are heading to trial end up settling on the courthouse steps, sometimes just before the trial is scheduled to start. If this happens, you, your spouse, and your lawyers will hunker down in separate conference rooms or secluded areas, where you can go over last minute preparations, while you wait for the judge to call your case.
This time is an opportunity for both spouses to try to settle all—or at least part—of the case. Sometimes, just being in the courthouse, immersed in feelings of fear and uncertainty and surrounded by the trappings of the law, is enough to convince a stubborn spouse to give in and be more reasonable and flexible. The attorneys will take one last crack at settling all the issues in your case: if they can’t, they will try to narrow the issues for the trial judge.
If the day wears on and the case still isn’t settled, you and your attorney can use downtime during the lunch hour or recesses to try again to reach an agreement that satisfies everyone.
If all or part of your case goes to trial, the judge will require everyone to follow the applicable state laws and local rules. Divorce trials vary from locality to locality, but for the most part, the trial will happen in the following order.
The Petitioner Goes First
The plaintiff or petitioner (meaning, the party who requested the divorce) will go first by putting on evidence and calling witnesses. When witnesses are done testifying for the plaintiff, the defendant (also known as the respondent) has the right to cross-examine or question the witnesses on matters that were explored during the initial testimony.
The plaintiff can ask the judge to accept documents (and other kinds of tangible items or information) into evidence as exhibits. The defendant will already have seen these items during discovery, but it’s customary to ensure that the defendant has the chance to examine the exhibits in the courtroom, before they're entered into evidence. The exhibits will be labeled by the court clerk with a stamp or a sticker, and they become part of the official record. The judge will only admit an exhibit into evidence if there is sufficient legal and factual foundation for its existence
The Respondent's Case
The defense then calls its own witnesses and admits its own exhibits.The defense rests at the conclusion of its case. The judge will grant the plaintiff “rebuttal” time. The plaintiff carries the burden of proof during civil trials, so the plaintiff also gets the last word. Rebuttal can’t exceed the boundaries or subject matter of the testimony that’s already in evidence.
Final Arguments and the Court Order
Both the plaintiff and the defendant make final oral arguments to the judge. On some occasions, the judge will issue a ruling from the bench and send out a written order later. However, more commonly, the judge will give both sides an opportunity to submit a copy of the court order they would like the judge to sign.
The judge considers all the testimony, exhibits, evidence, and arguments, and applies the relevant divorce laws to them. Then the judge issues a written order that finalizes the divorce and disposes of all the issues presented at trial. After receiving the written order, the parties discuss the order with their attorneys and consider whether to appeal all or part of it. If neither side appeals within a certain number of days, then the court's divorce order becomes final.
A Word About Witnesses
You and your attorney may call expert witnesses to testify about complicated topics. For example, vocational experts are often called to testify about how much income the spouses can earn based on job skills, work histories, and education. Or, an attorney may call a property appraiser to give an opinion about the value of the family home. In contested custody cases, judges or parents often request a custody evaluation, which would require the expert evaluator to testify about any custody recommendations.
Divorce lawyers aren’t limited to calling expert witnesses. They can call lay witnesses, who testify about things they have personally witnessed or experienced. For example, if adultery is an issue, a lover may be asked to testify about an extra-marital affair.
Attorneys are required to exchange witness lists before trial, so unlike what you see on television shows, there won’t be any shocking moments where an unanticipated witness saunters into the courtroom. If an attorney wants to call a surprise witness, they'll have to get the judge's permission first.
If you have questions about divorce trials, you should contact a local divorce lawyer for advice.