If your divorce is headed for trial, you absolutely need to be prepared for what’s to come.
Keep in mind that only about 5% of divorces end up going to trial. Even if you think you and your spouse are likely to settle before going to trial, it’s still helpful to know how divorce trials work so you’re prepared for the worst-case scenario.
Here’s an overview of what you need to do to prepare for a divorce trial. Let’s dive in.
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A divorce trial is a highly structured event that requires a significant amount of preparation. Trials are governed by the laws and procedures of the state where it is held and should always be treated as a serious matter. The impacts and decisions reached in a divorce trial can be significant and long-lasting.
A divorce trial is usually held in front of a judge, or it may be held in front of a jury in some cases. During a trial, both sides will present evidence and call witnesses to support their claims on issues such as a division of assets, child custody, spousal and child support and other related matters.
The court will consider all of the input and render a final and binding decision that both parties must adhere to going forward. From this, a Final Divorce Decree is issued. If one side or the other does not comply, then they can face serious legal repercussions.
A trial is usually the final step in a long process that may take several months or years and cost a considerable amount of money. Divorce trials are not for the faint of heart, but sometimes they are necessary to ensure a spouse’s rights are protected.
Judges will decide things such as temporary child custody and visitation privileges, temporary alimony and child support, which spouse is responsible for a variety of financial matters (mortgage, childcare, health insurance, etc.), and emergency issues, such as temporary restraining orders.
A hearing is also sometimes referred to as a case management conference. Judges will lay out what you have to do as you move forward and provide deadlines for when you have to complete the required steps. The hearing also provides the court with the opportunity to familiarize itself with your case.
They can also be used to decide specific legal issues in advance of a trial. This might be evidence that can be included, what witnesses are allowable, and if certain types of documents can be part of the actual proceeding.
Hearings may take place in the courtroom or in a judge’s private chambers. In some instances, they may be conducted by a phone conference. Generally, the hearing will last between 15 and 30 minutes, depending on the complexity of your divorce. Unless they represent themselves, spouses will rarely speak during a hearing. Attorney’s will do all the speaking and heavy lifting on your behalf.
In some cases, the hearing may also include negotiations between both sides that might allow all the issues to be decided. When a settlement is reached, then the trial can be avoided altogether. At the very least, the number of issues can be narrowed and require that less legal matters be resolved in open court.
Upon completion of the hearing, all issues that have been decided will be included in an order that the judge will sign and issue.
After all the preliminary legal actions have taken place, you will go to the courthouse for your divorce trial.
Be smart and arrive about an hour early so that you can become comfortable (as comfortable as possible given the circumstances) and settle into your surroundings. Be sure to dress well. It shows respect for the judge and the court.
Your attorney may want to meet with the other side’s attorney to see if any last-minute agreements can be made. The more things that can be stipulated in advance, the happier a judge will be. You also might be surprised at how many divorces are settled on the day of the trial after reality sinks in.
When the trial begins, it usually proceeds in the following manner:
Opening statements. Both sides have the opportunity to make an opening argument. Each attorney will want to outline the different issues in the case and start to explain your point of view to support your position. Your attorneys will tell the judge what you want, why you want it, and why you’re entitled to what you’re requesting. Your attorney will also attempt to establish credibility by stating facts accurately and precisely on your behalf. Judges always know when the truth is being manipulated.
Examining witnesses. The petitioner will call witnesses to support their case. This can include both the petitioner and their spouse, expert witnesses, third-party witnesses, and others. There will be a direct examination of the witnesses, and the other side will then be able to cross-examine the witnesses as well. At various points, evidence will also be introduced to support the case. A respondent will then be able to call their witnesses and present their evidence as roles are reversed.
The defense rests after its case. The judge will grant the plaintiff “rebuttal” time. Because the plaintiff carries the burden of proof during civil trials, the plaintiff also gets the last word.
Closing argument. The final part of the trial is closing arguments from both sides.
At this stage, all of the evidence has been presented to the judge. All of the exhibits have been entered into evidence. Attorneys will restate important evidence to the judge and apply it to the law to support whatever conclusion the attorneys are asking the judge to make.
Written order. The judge will issue a written order that finalizes the divorce and rules on 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.
Trials are lengthy, stressful, and expensive. That’s why only about about 5% of all divorces ends up in a full-blown, contested trial. Often times, the stakes are high, and there’s no guarantee of the outcome. That’s why spouses opt for other types of settlements before their cases end up in court.
If you’re able, it might be best to explore other forms of alternative dispute resolution. This can involve collaborative divorce, mediation, or private arbitration. Each offers advantages that might be preferable to traditional litigation.
Which one is best for you is not a simple answer. There are advantages and disadvantages to each. To help you explore alternatives, check out our in-depth overview on The Types of Divorce. It will answer many of your questions and help you make an informed decision.
There are a few exceptions, but in the vast majority of divorce trials, court records are public documents. One of the drawbacks of a trial is that couples may have no choice but to have highly personal and intimate details of their marriage made public. Unless there are specific circumstances requiring confidentiality, members of the public are allowed to be present during your divorce trial as well.
Divorces start when one spouse files a complaint or petition to dissolve the marriage. The court clerk opens the case, and at that time, the petition and every other court document filed in the matter becomes public record.
This is part of the reason why such a low percentage of divorces make it to trial. Other alternatives, such as arbitration or mediation, provide a much higher degree of privacy as well as costing much less.
There are some exceptions in some states. For example, a judge may decide to hold a hearing in private if there are children involved and/or there are allegations of physical or sexual abuse.
In addition, psychological examinations of spouses and similar documents gathered in custody disputes are often kept confidential. All of a judge’s notes, first drafts, and internal memos from her staff are protected as private.
If you want to win, you probably do.
Although some people prefer to represent themselves in court, you are asking for trouble by trying to be penny-wise and pound-foolish.
An experienced divorce attorney with many years of trial experience is pretty much the route you should take to give you the best chance of having issues ruled in your favor. In this way, you can protect your rights and create a forum for a fair negotiation between you and your spouse. This is especially critical where one spouse has dominated the other, or physical violence or domestic abuse has been present in a marriage.
In all cases, if your spouse hires an attorney, you should do the same. You must be able to battle on a level playing field.
The other thing an attorney can do for you is to take the emotional component out of your divorce. They will be able to approach issues from a legal point of view, whereas you may be much less rational. An attorney can also carry the stress and strain of divorce for you, giving you the added confidence of the best possible outcome.
Attorneys are not cheap. If you can’t afford one, you can contact your local legal aid office to see if you qualify for assistance. Sometimes, volunteer legal staff who can point you to the right paperwork, review settlement agreements, and even assist in filling out paperwork. You may only receive partial help due to limited resources, but at least you will be protected to some degree.
If you don’t qualify for legal aid, you may be able to find an attorney willing to take your case “pro bono,” which means for free. Some states require attorneys to provide a specific number of pro bono hours per year. The best way to find a pro bono or low-cost attorney is to contact your state bar association and ask for referrals.
The exact procedure will vary from case to case, depending on what the issues are that need to be litigated. But some actions are common to all divorce pretrial proceedings.
Most of the time, you and your attorney will need to accomplish the following before you go to trial.
Preparation of financial affidavits. A judge will want to know what your financial position is just before you go to trial.
An exchange of disclosures. All evidence must be shared with the other side prior to a trial so that each can thoroughly prepare without surprises before the court date. A pretrial conference held by the judge will set a date for discovery cutoff, and both sides are expected to adhere to this date. Anything received after that date will not be admitted into evidence.
Review of the pleadings. This needs to be done to see if anything needs to be amended and to make sure that everything has been requested. Sometimes things change during the case, and something that may not have been appropriate to ask for the beginning of the case may become relevant at the end.
Completion of trial depositions. In almost all cases, each spouse will be interviewed by the opposing attorney in the presence of a court reporter. This can reveal information and strategies that might be used during an actual trial as well as getting a spouse on an official record. It is a fact-finding activity that often includes several open-ended questions designed to get a spouse to open up about certain issues. Depositions tend to be much broader than at a trial where questions will tend to be narrowly focused and close-ended.
Exhibit management. You and your attorney will decide which evidence needs to be presented and in what order to make your best case in front of a judge.
Client preparation. A trial is stressful and nerve-racking. The best way to reduce the amount of stress and to make your best case is to rehearse your answers, know the points you want to make, and know what issues you want to downplay or minimize. As a witness, expect to participate in mock rehearsals and a final rehearsal leading up to the actual trial. Your attorney will play devil’s advocate and help you prepare for any difficult issues you may encounter. This will prep you to not say so that you don’t say the wrong thing or get flustered and contribute to losing your case.
Costs. Divorce trials are not cheap. Many can cost tens of thousands or even hundreds of thousands of dollars. As part of the trial preparation, you will need to discuss a fee structure and anticipated costs with your attorney. You need to weigh the costs of the trial versus the anticipated overall settlement you might receive as a result. Sometimes, it just flat out more conducive to settle than go through the expense and the stress of a trial.
A pretrial conference. When an impasse has been reached, and a trial is imminent, you and your attorney will need to attend a pretrial conference. These are usually very short, and your attorney will do all the talking. From this conference, a Notice of Trial will be filed with the court, or your attorney will contact a judge’s assistant to coordinate the next steps. Judges will not schedule a pretrial conference until spouses have exhausted all other measures to resolve their differences, including mediation, parenting courses, mandatory disclosures, and submissions of all related documentation.
Pretrial Memorandum. Almost all Courts require the submission of a pretrial memorandum at least 72 hours prior to any pretrial hearing. This memorandum sets out the facts and issues of each particular case. A judge will scan the memorandum to get the gist of a case instead of having to go through the court file. It will include all major issues ranging from a division of assets to child custody and alimony, a listing of assets and debts, and other related information.
Witness lists. You will need to develop a list that may include both spouses, any witnesses that can testify to the relevant issues in your case, all witnesses that could be called by the opposing side, rebuttal witnesses, expert witnesses (forensic accountants, business valuators, property appraisers, psychologist/psychiatrist, etc.). You would need to subpoena any witnesses you plan to call to trial. If you do not issue a subpoena, then the Court would have no remedy if the witness did not show up to trial.
Pre-trial hearing. All parties must be present at the hearing where the judge will review the pretrial memorandums and go over the probability of the case going to trial. Pleadings and motions will be discussed and heard. Disclosure deadlines are put in place, and stipulations will be decided. The judge will also determine what issues need to be resolved and when the trial will take place.
You may be able to guess what the most common divorce trials are about. They are often the same issues that cause a couple to argue and disagree before working things out when there is no trial.
The two biggest issues are how assets should be divided, and custody and support issues when there are children involved.
How assets are divided varies from state to state. Most states are equitable division states which mean assets are divided fairly and equitably, but not always equally. A handful of states are community property states. In those states, marital property is divided equally on a 50-50 basis.
Judges are generally bound by strict interpretations when it comes to a division of assets. Keep in mind that judges must also rule on a division of debts in some cases, too.
The first thing they must determine is which assets are community or marital property, and which assets are not. There can be considerable evidence presented on both sides to make the case that an asset should be included or set aside. The asset not only needs to be identified, but there also needs to be an appropriate value placed on it as well. For a home, this will mean an appraisal or a similar means of valuation.
For retirement accounts, a CPA or CDFA will need to work through the value of each account, determine if some of all of the account is marital property, and then present written evidence in the court to substantiate the claim.
Assets can change their valuation at very short intervals, sometimes daily, so a judge will need to pick a “snapshot” date for purposes of valuing assets. In some cases, a spouse may have already sold an asset or otherwise dissipated it, and a judge will need to account for those actions as well.
The other big issue involves child custody. This is where a case can get particularly nasty. A judge will need to figure out the relationship between the children and each spouse, which spouse can do a better job of providing for the child’s needs, how much time each spouse should be able to spend with the child and who will have primary custody.
This can be a daunting process and may involve expert witnesses, social workers, law enforcement (if domestic violence or abuse is present) and other parties who will testify one way or the other.
If a child is old enough, they will also have a say in which parent they prefer to be with. In all instances, a judge takes the child’s best interests into account as the primary deciding factor. Unraveling exactly how that should play out can be complicated and hotly contested.
Other times parents will agree on a general custodial or visitation schedule but need the court to decide which parent has the final say on major decisions like religion, education, medical treatment, or extracurricular activities.
There is also the subject of child support to be determined as well. Most states have formulas that are based on both parents’ income and ability to provide for a child. However, the courts are also granted leeway to deviate from the accepted base amounts depending on several factors. This can often swing a final child support amount one way or the other. Because large dollar amounts can be involved over a number of years, the amount of preparation for this battle can also be considerable.
The same also holds true for spousal support. Alimony can either be temporary, permanent, or paid in a lump sum depending on many factors. The age, health, earning power, duration of the marriage, other assets and several variables all need to be taken into account before a judge will determine how much should be paid and for what length of time.
While the best course of action is to approach divorce in a collaborative manner and in good faith, there are times when one spouse simply refuses to be reasonable. Sometimes it’s on these issues, and at other times, it could be something completely different.
Any issue in a divorce can be litigated when there is no agreement between the two parties. Spouses may fully believe their point of view is accurate and correct, and the only way to determine if that’s so is to have an impartial third party either agree or disagree with them.
The end of a divorce trial rarely means the end of a divorce case.
For starters, the judge still needs to make final rulings on all the outstanding issues.
He or she will either do this on their own, but oftentimes they will also ask both attorneys to submit proposed final judgments. This means the judge will want to hear the attorney’s opinions about what they think is fair.
If a judge is leaning toward one side or the other, they will use that judgment as the basis for drafting their final decision.
Even after the final judgment is released, either side always has the opportunity to appeal if they feel there was an incorrect ruling as a matter of law.
Jason Crowley is a divorce financial strategist, personal finance expert, and entrepreneur. Jason is the managing partner of Divorce Capital Planning, co-founder of Divorce Mortgage Advisors, and founder of Survive Divorce. A leading authority in divorce finance, Jason has been featured in the Wall Street Journal, Forbes, and other media outlets. He is a Chartered Financial Analyst, Certified Financial Planner practitioner, and Certified Divorce Financial Analyst. You can email him at jason@survivedivorce.com.
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