TAKING YOUR DIVORCE CASE TO TRIAL

Trial  

If it has been determined that the parties cannot agree on all of the pertinent concerns, those concerns will be addressed and resolved at trial. Unlike the trials you may see on television, divorce trials are different in that they do not have a jury. The judge assigned to the case will hear both sides’ evidence and then issue a ruling. The verdict will be binding on each spouse. Most divorce trials will follow the procedure examined in detail below.

Opening Statements  

The trial will begin with an opening statement from each party’s attorney. The side that filed for the divorce (Petitioner) will go first, and then the non-filing side (Respondent). The purpose of the opening statement is to paint a big picture for the judge, giving the judge a grasp of what each side seeks regarding custody, property division, and support obligations. Since the judge will likely be the same one who has been present throughout the divorce, there is no need to lay out every detail. The judge will likely be aware of each party's concerns. With that being said, the attorney should narrow the opening statement to key issues and why his or her client’s demands are appropriate.

The Petitioner’s, or Filing Party’s, Evidence   

The Petitioner’s case will be presented to the judge first. Most attorneys will use witnesses and other evidence, in the form of exhibits, to show their proposal to the judge. Witnesses will be called upon and required to take an oath before the questioning begins in what is called a “direct examination”. Spouses may also be called as witnesses, which an experienced attorney will have adequately prepared them for. Obviously, attorneys will likely call witnesses who will aid their respective cases. During the direct examination, the opposing attorney may object if he or she believes the opposing attorney is violating a rule. For instance, if an attorney is asking leading questions, the opposing attorney can object. Once the judge hears from both sides regarding the objection, the judge will decide if the objection is appropriate (sustained) or not (overruled).

Once the direct examination concludes, the opposing attorney can ask questions in what is appropriately called “cross-examination”. Attorneys will use this time to dig deeper into the facts that the witness has just relayed. Since a witness's credibility is vital, this time is also used to discredit the witness, if possible. Unlike direct examination, cross-examination allows the attorney to ask leading questions. This means the witness will likely give yes-or-no answers to many of the questions, because the questions will likely contain much of the substance.

Once the cross-examination concludes, the “redirect” begins. The Petitioner’s attorney uses this time to clear up any facts that may have been lost in the cross-examination. However, the opposing attorney gets the last set of questions in the “re-cross examination”. Once the re-cross concludes, the witness may exit, and the Petitioner’s attorney may call other witnesses. This process repeats until there are no more witnesses for the Petitioner.

The Respondent’s, or Non-Filing Party’s Evidence

Once the Petitioner is done calling witnesses, the Respondent’s attorney will be allowed to begin calling witnesses to present their case. This process mirrors the previous one, with the roles reversed. The Respondent will now participate in direct examination, with the Petitioner getting the last set of questions. Once all of the witnesses have been called and exhibits have been displayed, the Respondent will rest his or her case.

Closing Arguments

Once both parties have presented all of the necessary evidence, each attorney will give their closing arguments. The Petitioner’s attorney will proceed with his or her closing argument first. The attorney can reserve a set amount of time for a rebuttal closing if they feel it is necessary. The closing argument in some way mirrors the opening statement. The purpose of the closing argument is to use all of the evidence presented to relay to the judge what they think the appropriate ruling should be. The Respondent’s attorney will also have a chance to give a closing argument. If the opposing divorce attorney reserved time for rebuttal, they will have that opportunity as well.

Announcement Of The Decision and Terms Of The Divorce Decree

The judge may decide on the same day as the trial concludes. Obviously, this depends on the length of the trial and whether the judge has the time to make a decision that same day. Typically, the judge will order a brief recess to process all the information presented at trial. Then the judge will come back to render a ruling on the record.

Sometimes the judge may need more time to review all the evidence and will order the parties to reconvene at a later date to administer the ruling. The judge will set a Ruling Hearing date, and the parties will need to attend on that date and time.

Once the recess is over, the judge will declare the terms of the divorce. First, the marriage will be dissolved, and the judge will announce any additional findings necessary to uphold the divorce. Then the judge will explain the reasoning behind the decisions on property division, support obligations, and custody issues. The judge will likely address the parents directly once the custody ruling is issued. The judge will probably remind the parents that, regardless of the verdict and how they feel about the ruling, the children need both parents. At this point, the parties will be excused, and the judge will ask the attorneys to prepare a written ruling for the judge to sign and file.