A trial in a divorce case is truly your “day (or more) in court.”
As a caveat, very few cases actually make it all the way to a trial. Most cases end up in a settlement whereby the parties sign an agreement that resolves all of the issues such as domestic violence in a divorce. These settlement agreements can be done by lawyer-led negotiations before or after filing, at mediation, at an impromptu settlement conference, or even on the eve of trial.
In fact, most judges encourage us, lawyers, to come to court early the morning of trial for one last chance to see if we can resolve our clients’ differences.
But some cases must indeed go to trial. And below is a guide to help our clients understand what trial is, what we need to do beforehand, and what to expect at trial.
Index for Quick Jump
A divorce trial is when you and your spouse cannot agree on some or all of the issues in your divorce and you need to have a judge make the final call.
Divorce trials are similar to what you see on TV: each attorney will present an opening statement to the judge explaining what they anticipate the evidence will show. Witnesses will be called by both sides and cross-examined by the other side. Evidence will be presented to the court to help both sides articulate their divorce case. The judge may ask some questions of both parties. At the end, both attorneys will give closing statements to the judge that will explain the facts as presented, apply them to the law, and argue for a particular outcome.
At the end of the trial, the ball goes into the judge’s court. In some cases, the judge is able to make a ruling then and there on all of the issues. More often, however, the judge needs to go back and review all the evidence and make a judge decision for the case.
It’s not uncommon for a trial to be finished and to wait for weeks (or sometimes even months) for the final decision from the judge.
A lot. The difficult thing to understand about a divorce trial is it’s not as simple as getting up there and telling the judge your case.
When you go to a divorce trial, you are having a true contested litigation hearing in our court divorce process. And that means that judges can be appealed if they get it wrong. Now, judges have specific requirements about how they weigh evidence and make determinations when you go in front of them for a trial.
For example, when it comes to dividing assets and debts, the judge needs to see competent evidence (usually in the form of documentation) that explains what the asset is and its corresponding value. Realizing that most assets change their valuation sometimes on a daily basis, the judge is required to pick a snapshot in time for the purposes of the value of the asset. If an asset has been liquidated or dissipated by one of the parties, the judge needs to account for that.
If the average case has between 10 and 20 assets and debts, all of which need to have this particular treatment from the judge before the judge determines how to divide the assets and debts, then you can see there’s quite a bit that goes into making sure that the attorneys present an adequate case that will not only survive an appeal but also the day.
For another example, a judge who makes a determination on alimony needs to determine that a payer has the ability to pay, the payee has a need, and among other things, the standard of living of the parties during the marriage.
While this sounds simple in theory, this can often take months or even years of bank statements and income records to show the big picture to the judge so he/she can make a good ruling. Of course, in the most contested cases a financial expert can really help move this process along.
And for yet another example, consider a contested children’s custody case. When we’re trying to figure out the relationship between the children and the mother and father, the sheer amount of evidence that can be presented to help explain a good custody arrangement can be daunting. Text messages, emails, pictures, school records, doctor’s records, etc. —all over the course of many months or years.
Of course there are some things not exactly relevant to the trial. For example, the infidelity of one party (if it hasn’t in any way affected the children) is almost always irrelevant. Likewise, the bad acts of either party if they’re not relevant to the children are also irrelevant.
Below is a list of what we need to have accomplished before we go into court the day of the trial.
A Pretrial in a family law case happens after the parties have been to a mediation which was unsuccessful; or an impasse was reached. At this point the parties are on their way to a conclusion to their case. This is usually a more informal hearing and last for about 10-15 minutes. This is nothing to get stressed about. The divorce attorney will usually do all of the talking for you, and you will be out of the Courtroom before you know it!
Depending on the County this will be set in one of two ways. Either:
Judges will normally not set the case for a pretrial until EVERYTHING has been completed. This includes mediation, a parenting course (if children are involved), compliance with mandatory disclosure, etc.
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. It enables the Judges to scan the memorandum to get the gist of a case instead of having to riffle through the court file.
The Memorandum will generally set out the following:
A. THE MARRIAGE
B. THE CHILDREN
D. PERSONAL PROPERTY
E. REAL PROPERTY
F. RETIREMENT PLANS
H. ATTORNEY’S FEES AND COURT COSTS
ATTACHMENTS TO THE MEMORANDUM:
Once you obtain a witness list from an opposing party you may want to consider taking depositions of some, if not all, of the witnesses. This will include additional costs since you have to pay for a court reporter to transcribe the deposition, and your attorney for attending the deposition. However, you will be able to obtain VALUABLE information prior to trial as to what the witnesses is planning on testifying to. This prevents you, and your attorney, from being blindsided by something at trial.
Witnesses you should depose prior to trial include:
An additional benefit of taking the deposition of a witness includes the increased ability to “impeach” them, or show that they are lying, at trial. This is because you will have a transcript of sworn to testimony that they gave at the deposition, and if they deviate from that testimony at trial you can use the transcript from the deposition.
Both the parties in a case are required to submit a witness list with the pretrial memorandum. This list should include ALL the witnesses you plan on calling for trial. In addition to the names, you need to list addresses and phone numbers for the witnesses. If a witness is not listed on your witness list prior to trial, the Judge will exclude them from testifying. In Florida, each party is entitled to proper notice of who is to be called to trial so that he/she may be properly prepared.
Common Witnesses to include on the witnesses list are:
Once this is turned over the other side has the ability to contact your witnesses and even set them for depositions if they wish. However, you will have the same ability with their witnesses.
You would need to subpoena any witness 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.
It is important to make sure you review the Financial Affidavit which was submitted to the Court and make any changes necessary prior to the trial. The Financial Affidavit is a sworn to statement listing your income, expenses, assets, and liabilities. The Judge’s often use the Financial Affidavits to establish things like alimony, child support, and values of assets or liabilities. Due to this, it is EXTREMELY important that these financial affidavits are 100% accurate.
It is a party’s responsibility to update financial affidavits as they become necessary. For instance if a party loses his/her job, or get a promotion, he/she is required to inform the Court by updating the financial affidavit.
At the actual Pretrial Hearing all parties need to be present. The Judge will review the submitted Pretrial Memorandums and go over the probability of the case actually going to trial as well as the following preliminary matters:
Your trial will be at the courthouse. Almost assuredly you have been to the courthouse and in the judge’s courtroom at some point in your case leading up to the trial, usually at a case management or pretrial conference.
As discussed above, you’ll arrive about an hour early. This is really an opportunity for your attorney to do two things. First, your lawyer wants to communicate with the other attorney to see if there are any additional agreements that can be made. Sometimes we can resolve the entire case the morning of trial. Maybe more often, we realize during trial prep that there are some things that can be stipulated, which will save time (and expense) during the trial and cut down the amount of time the trial will take. Judges love this.
You’ll be dressed well, at least business casual or even in church gear if you’re comfortable. Don’t wear jeans and a T-shirt; show respect for the court and the judge, and the court and the judge will show you respect back.
When we go in front of the judge, remember that the judge is the person listening to the evidence and making decisions. There is no jury in family law court. The benefit of this is that judges will often have trials in little courtrooms or in their chambers. This can be much more comfortable and less scary than having a trial in front of a big courtroom.
When we go in, the judge will greet everybody and ask the attorneys if they are ready. The attorneys will likely say yes, and the trial begins.
The trial is broken up into the following components:
Opening statement: both parties get an opportunity to give an opening argument.
If the case is one that’s well known to the family court judge, then he/she may not require the history of the case or review of the pleadings as much as one where the case is unfamiliar to the judge.
Your attorney wants to outline the different issues in the case (time-sharing, asset distribution, alimony, child support, and everything else). He/she also wants to explain the facts from your perspective that supports each one of those issues.
Your lawyer is trying to tell a story or narrative to the judge to keep the judge’s attention. Your attorney’s going to tell the judge what you want and why you want it. Most importantly, your attorney will tell the judge why you’re entitled to what you’re requesting.
Your attorney establishes credibility in the opening statement by stating facts accurately and precisely. You don’t want your attorney to overstate or manipulate the facts in an opening statement, because judges will figure it out and your attorney will lose credibility.
Examining witnesses: after the openings are done, the case goes right into examining witnesses. The petitioner who filed the case usually goes first in calling his or her witnesses. These witnesses include:
Direct examination: when your attorney asks you or his own witnesses questions, we call that direct examination.
When preparing for direct examination, what we’re trying to do is get you or the witness to tell the story to the judge. That means that we’ll ask lots of open-ended questions to guide you through your story and keep everything on track.
Cross-examination: when the other side asks you questions, this is called cross-examination. This is the opportunity for the other side to probe your direct testimony. You can expect that the other side will ask you a lot of leading questions. By leading, we mean yes or no questions.
Closing argument: the final part of the trial is closing arguments from both sides.
At this stage, all of the evidence is been presented to the judge. All of the exhibits have been entered into evidence.
Now, the 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.
At the conclusion of the closing arguments, the ball now goes into the judge’s court.
Unfortunately, the conclusion of the trial is rarely the conclusion of the case.
We often still to wait for the judge to make a final ruling on everything.
Often, the judge will ask for both attorneys to submit proposed final judgments. In other words the judge is asking for attorneys to pretend that they are the judge and write the order that they want the judge to make. These orders are often given to the judge in a Word format. If the judge is leaning our way, he/she will often take our proposed final judgment and work off of that to create the actual final divorce judgment.
After the final judgment, the case is complete. However, because this is America there is always the opportunity for either side to appeal if they think the judge made an incorrect ruling as a matter of law.
We help our clients deal with the difficult process of divorce. We also do no-fault divorce cases around Tampa, St. Petersburg, New Port Richey, and Bradenton, Florida.