Taking Your Divorce Case To Trial
If it has been determined that the parties cannot come to an agreement on all of the pertinent concerns, those concerns will be addressed and determined 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 make a ruling him or herself. The ruling will be binding to each spouse. Most divorce trials will follow the procedure examined in detail below.
The trial will begin with an opening statement from each party’s attorney. The side who 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 allowing him or her a grasp of what each side is asking for with regards to custody, property division, and support obligations. Since the judge will likely be the same judge that has been present throughout the entire divorce process, there will be no need to lay out everything that has happened throughout the process. The judge will probably have knowledge of the concerns of each party. 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 as well as other evidence in the form of exhibits in order to relay 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 aptly prepared him or her for. Obviously, attorneys will likely call witnesses that will aid their respective case. During the direct examination, the opposing attorney is allowed to make objections if he or she feels that the opposing attorney is violating some 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 credibility of a witness 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 that the witness will likely give yes or no answers to many of the questions, because the questions will likely contain a lot of the substance.
Once the cross examination concludes, the “redirect” begins. This time is used by the Petitioner’s attorney 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 that of the previous process, the difference being the reversal of the roles. The Respondent will now participate in direct examination with the Petitioner getting the last set of questions this time. Once all of the witnesses have been called and exhibits have been displayed, the Respondent will rest his or her case.
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, and if the opposing attorney reserved a time for rebuttal then they will have that opportunity to do so as well.
Announcement Of The Decision And Terms Of The Divorce Decree
It is possible that the judge will make a decision the same day of the conclusion of the trial. 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 in order to process all of the information that has been displayed at trial. Then the judge will come back to render a ruling on the record.
Sometimes the judge may need more time to look over all of the evidence and will order the parties to reconvene at a later date to administer his or her ruling. The judge will set a Ruling Hearing date, and the parties will need to attend on the date and time given to them by the judge.
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 give his or her reasoning behind the decisions surrounding property division, support obligations, and custody issues. The judge will likely address the parents directly once the ruling about custody is given. The judge will probably remind the parents that regardless of the ruling 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 writing detailing the ruling so the judge can sign and file it.
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