Family Law

What Should I Do to Prepare for My Divorce Trial?

By Amy Castillo, J.D., University of Minnesota School of Law
So your divorce case is headed to trial? Learn how to prepare for court.

If your divorce is headed for trial, the worst mistake you or your attorney can make is to go into the courtroom unprepared—you may damage your case beyond repair. Judges aren't impressed by disorganized litigants that aren't ready for court.

Court rules vary from location to location, but for the most part, the following guidelines apply.

Prepare an Opening Statement and a Closing Argument

If you don’t have an attorney, you'll need to give the judge an opening statement and a closing argument. Write these ahead of time and become familiar with them, so that you aren’t handicapped by nerves. It's best to memorize your statements, but you'll also need to be prepared to change them on the fly, depending on what evidence comes in during the trial.

Remember that an opening statement is just that: a statement. During your opening, discuss what you expect the evidence to show, and what you think the outcome of the case will be. Don’t argue your case at this point, or the other side will object, and the judge will cut you off. You’ll have an opportunity to argue in your closing argument, where you can go over the evidence, explain how the law and the facts favor you, and ask the court to rule in your favor.

Understand How to Testify

If you’re called to testify, you'll be sworn in by the clerk of court (or the judge, in some jurisdictions) and asked to swear that you will tell the whole truth and nothing but the truth.

There are two kinds of testimony: direct examination and cross-examination. If you have an attorney, your lawyer will ask you questions on direct examination. If you don’t have a lawyer, you will narrate your testimony and possibly answer some questions from the judge—there are no juries in divorce trials. After you've completed your direct testimony, your spouse or your spouse’s lawyer will cross-examine you and ask you questions about the things you said during your direct.

You’ll understandably feel eager to tell your story, and you’ll likely feel anxious. Regardless of your nerves or your desire to tell the judge everything that’s happened, you are legally limited to testifying about relevant matters only. For example, if you live in a no-fault divorce state, such as California, where you don't need to justify getting divorced, you won't be allowed to testify about your spouse's cheating ways. Understand that no matter how hurt and angry you are, you’re not going to be able to tell the judge every lousy thing your spouse ever did to you. Your testimony must relate to the legal issues the judge has to decide.

Whether your attorney is questioning you, you're representing yourself, or you're responding to cross-examination by your spouse or your spouse’s attorney, don’t volunteer information that’s outside the scope of the question. Listen to the question, take a moment, and respond only to what was asked. For example, if someone asks you if you’re wearing a red sweater (and you are), then a simple “Yes” is all that's called for, rather than, “Well, I’m wearing a red turtleneck sweater with buttons on the cuffs, which I purchased at . . . .” Also, be sure to let the question sink in for a moment or two before answering so that you or your attorney have an opportunity to object if the question is inappropriate or legally impermissible.

Familiarize Yourself with the Exhibits

Both you and your spouse will have to submit documents and other items as evidence in the trial. Be sure you're entirely familiar with all possible evidence, including the material your spouse will introduce. There should be no surprises at trial, because in discovery, both of you will have exchanged all the items you intend to enter as an exhibit for the judge to consider. It’s also wise to bring extra copies of documents. At the very least, for each document, you should bring a copy for yourself or your attorney, a copy for the opposing side, and a copy for the judge. Also bring pens and tablets, so you can take notes during the trial.

Control Your Emotions

Divorce is one of the most profoundly painful and life-altering events you may experience. Regardless of how hurt or angry you are, don’t approach your soon-to-be ex-spouse or your spouse’s lawyer and reveal how upset you feel. On cross-examination, simply respond to the question, but don’t get angry with the person asking it. Untoward behavior will only make the judge view you as an angry and irrational person, which might have an impact on the court’s decisions.

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