Nolo's Essential Guide to Divorce - Emily Doskow [62]
There's much more about each of the "big three" divorce issues in the chapters that follow.
Anatomy of a Divorce Trial
Very, very few court cases-divorces included-go all the way to trial. Even the most hotly contested cases generally settle without trial, sometimes only hours or days before.
As the trial date grows closer, preparation will heat up. Your lawyer will spend many hours preparing a trial brief, an opening statement, and evidence to present to the judge. And you will probably be required to spend many hours with your lawyer and other law firm staff, preparing your testimony and going over documents to make sure that your lawyer completely understands the financial and personal issues.
Most trials follow a similar pattern, one you've probably seen on television many times. But there's no jury; in almost every state, divorce trials are held in front of one judge. (Currently, Texas and Georgia are the only states that allow jury trials in divorce cases if you request it.) That means that in most places, all of the decisions in your case will be made by one person: the judge.
A lot happens during a trial. But even with all the back and forth that's described below, a trial can be as short as one day. It also can he much longer. It depends on whether you were able to resolve any of your issues before going to trial or whether the judge has to decide every single thing, and on how complicated your legal and financial issues are. The more complicated they are, the more witnesses and evidence you'll need to present, and that means more trial time.
Be prepared. If you're going to trial and you haven't been to the courthouse for any hearings, visit before your trial starts. You can even watch another divorce trial if you want to get a sense of how things go.
Opening Statements
Let's assume you are the petitioner-that is, the person who filed for divorce. Your lawyer will begin the trial by telling the judge what you are asking for, and how the evidence will show that you are entitled to it. Next, your spouse's lawyer will have a chance to do the same thing. The lawyers aren't supposed to argue in their opening statements, only to tell the judge what the evidence will show and what they want the judge to decide. In divorce trials, the opening statements tend to be brief-there's no jury to talk to, and the judge has heard most of your factual contentions before.
Petitioner's Case: Evidence and Testimony
You (the person seeking the divorce) will have the first chance to prove your case. Your lawyer will present evidence, both by submitting documents and by having witnesses testify. You will undoubtedly be one of the witnesses (see "Testifying in Court," below). There will probably be others, including financial advisors, actuaries, a forensic accountant if you used one, and any custody evaluators who evaluated you, your spouse, and your kids. You may also have hired expert witnesses to testify about things like the value of your home or business or the best interests of your children. And you may ask friends and family members to testify about things they've observed that are in dispute-for example, who has been the children's primary caretaker or the date that your spouse moved out of the house.
Listening Etiquette
Most of the time that you're in court for your trial-except when you're actually testifying-you will be sitting next to your lawyer and listening. It's important not to react to anything that your spouse or a witness is saying. If what's being said is wrong or untrue, write a note and give it to your lawyer. Don't whisper to your lawyer, and don't address the witness, the judge, your spouse, or your spouse's lawyer unless you have the