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.
What is a Divorce or Family Law Trial?
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.
What is Relevant at Divorce Trial?
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.
What We Need to Accomplish Before Divorce Trial
Below is a list of what we need to have accomplished before we go into court the day of the trial.
- At a minimum, two financial affidavits: one financial affidavit for you that was completed at the beginning of the case, and another financial affidavit that reflects your financial position very close to trial.
- All disclosure must be turned over to the other side: if there is a piece of evidence that we want to admit and show the judge, we need to turn it over to the other side out of fairness. Most judges at a pretrial conference will set a particular date that is a discovery cutoff. Anything received after this date will not be admitted into evidence.
- A review of the pleadings to see if they need to be amended: before the pretrial conference, it’s a good idea to review the initial pleadings in the case and 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 appropriate at the end.
- Trial depositions: in the vast majority of cases we need to sit down across the table from your spouse and ask questions at a deposition in front of the court reporter. In some ways this is kind of like a trial run of the cross-examination that will happen in court. But in other ways it’s a more free and liberal experience, because it is a fact-finding mission. We will ask lots of open-ended questions in a deposition to learn and uncover more facts and to get your spouse talking. Sometimes when the other party talks, we learn something that can help us either in trial or in a settlement phase. At trial when we talk to your spouse, it can be much more narrow with close-ended questions.
- Exhibit management: now that we have all the discovery done, we know what we want to introduce the judge; we want to start organizing it and print so that we can present it in such a way to paint the picture of what we want to tell.
- Client preparation: it’s not easy going through a trial. You not only must be prepared as a witness but also must be prepared to act appropriately at your deposition, mediation, and even when walking into the courthouse and into the judge’s chambers. While it can be nerve-racking, take comfort in knowing that to an extent a trial is a lot like a play. It’s an artificial environment where we have set rules and regulations. That means we can prepare you to be a good witness and we will. Expect that will do at least two short rehearsals and a final dress rehearsal right before the trial for your testimony in front of the judge. We’ll tell you the questions that we’ll ask you so you know what’s coming and when. We’ll also go over some potential cross-examination questions that you might get from the other side, so you feel comfortable and confident when you are in front of the judge. We will also go over potential questions that you might hear from the judge.
- Cost discussion: the reality is that trial is not cheap. It takes a lot of work to do it right and is time intensive. Before we are in the trial posture, you can expect that we’ll have multiple conversations about the cost of a trial. It’s important to know the total costs of litigation when we’re negotiating. For example, it would make sense to dig your heels over $5,000 in a negotiated settlement if the trial would cost you three times that.
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:
- A Notice of Trial is filed with the Court: This signals to the Judge that your case is ready for trial and the Court will automatically set a pretrial on the docket and send out notice; OR
- An Attorney or a Party gets in contact with the Judge’s judicial assistant and coordinates a pretrial with all parties involved.
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
- Date and place of marriage.
- Date of separation.
- Date of filing petition for dissolution of marriage.
B. THE CHILDREN
- Names and ages of the children involved, if any.
- The party who presently has primary residential care of the children.
- The amount of child support proposed for the children.
- Whether or not the children are presently covered under any medical insurance policy.
- What, if any, special medical problems any of the children have.
- Suggested parenting plan.
- Nature of the alimony; permanent, durational, rehabilitative, lump sum,bridge-the-gap or a combination of same.
- Amount of alimony, if any, proposed by each party.
- If rehabilitative alimony is requested, has a written plan been submitted?
D. PERSONAL PROPERTY
- A list of all personal property in controversy.
- Suggested disposition of said property.
- The value of each piece of property showing any lien or obligation against said property, and who is obligated for payment.
- Life insurance policies, if any, and whether said policies are term or wholelife, the beneficiary of said policies, and their present cash surrender value.
- Date of valuation.
E. REAL PROPERTY
- A list of all real marital property in controversy.
- The value of each parcel of property showing any lien or obligation against said property, and who is obligated for payment.
- What interest, right of claim or equitable interest each party claims in each parcel of property.
- Suggested disposition of the property.
- Date of valuation.
F. RETIREMENT PLANS
- A list of all retirement, pension, profit-sharing, annuity, deferred compensation and/or insurance plans whether they are vested or non-vested.
- The value of the retirement plans or other benefits.
- What interest, right, claim or equitable interest each party claims in the property.
- Suggested disposition of the plan or benefit.
- Date of valuation.
- A list of all unsecured debts and the amounts thereof.
- A list of all secured debts including the security for payment of the debts and the amounts thereof..
- Suggested disposition of the debts.
- Date of valuation.
H. ATTORNEY’S FEES AND COURT COSTS
- The amount of attorney’s fees and court costs sought by either party from the other (estimate to conclusion of trial)
- Will testimony be offered on this issue at trial or at subsequent hearing?
- Request for amendments to the pleadings.
- Necessity for further discovery. Discovery subsequent to the discovery deadline shall be permitted only on the order of the Court for good cause
- shown and which will not delay the trial of this cause.
- List admissions and stipulations to avoid unnecessary proof.
- All motions not heard at least ten (10) days prior to trial shall be deemed abandoned or waived, absent good cause shown.
- Requests for judicial notice.
- List issues to be resolved.
- Estimate the time needed for trial. (The parties will be expected to complete the trial within the allotted time which the court will equitably allocate between the parties)
- Are child support and/or alimony payments requested to be made through the State Depository Unit?
ATTACHMENTS TO THE MEMORANDUM:
- A fully executed Financial Affidavit.
- A Child Support Guideline Worksheet.
- A proposed chart of equitable distribution in the form attached.
- A schedule of all photographs, exhibits and documentary evidence which the Party intends to use at trial.
- A witness list giving all names, addresses and telephone numbers of individuals who may be called by a party. The witness list shall specifically designate all expert witnesses.
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:
- The opposing party.
- Any EXPERT witnesses.
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:
- Both the parties in a case.
- Any witnesses who would be able to testify to relevant factors for your case (teachers, neighbors, co-workers, etc.)
- Any and All witnesses intended to be called by the opposing party.
- Any rebuttal witnesses.
- Any expert witnesses you plan to use (forensic accountants, business valuators, property appraisers, psychologist/psychiatrist etc.)
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.
Trial Financial Affidavit
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.
The Pre-Trial Hearing
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:
- Do amendments need to be made to the pleadings: If you forgot to plead something in your original petition NOW is the time to ask the Court for permission to amend. Remember, if something is not plead the Judge can now rule on it.
- If allowed the Judge will usually order that the pleadings be amended and filed within a certain time frame.
- Example: The parties have a marital home and cannot agree on who is to get it. The Petition does not include a count of Partition. If the pleadings are not amended then the Judge CANNOT order the sale of the home for the proceeds to be split.
- Are there any pending Motions to be heard: Usually, if the issue is not raised, motions not heard at least 10 days prior to the trial date are deemed waived.
- Disclosure/Discovery: The Judge will usually place a deadline on the time frame to turn over any disclosure/discovery. Items not turned over by the appropriate time will be excluded at the trial.
- Stipulations: The parties will determine if they will stipulate to certain facts or witnesses in order to speed the trial along. These usually include stipulating to a records custodian for entering documents such as bank records, and allowing copies instead of originals for documents.
- Issues to be decided: The Judge will ask what issues are left to be resolved. Sometimes parties have resolved some of the issues, and only a few need to be decided by the Judge. This will give the Judge an idea of what kind of case the trial is going to be. Main issues in a family law case always can include the following:
- Time Sharing/Parenting Plan.
- Child Support/Retroactive Child Support.
- Equitable Distribution.
- Attorney’s Fees.
- Time for trial: The Judge will usually have the parties specify how much time the trial is going to take. The Judge will then allot the parties this amount of time for the trial. It is usually better to overestimate a time then underestimate a time, because most Judges will hold you to this. Even if you are not complete the Judge will cut you off, and you may have to wait MONTHS to have another time to complete the trial.
What Should I Expect on the Day of my Divorce Trial?
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:
- The parties — you and your spouse: the most important witnesses are going to be you and your spouse. After all, nobody knows more than you guys in your own dissolution case.
- Expert witnesses: sometimes we need expert witnesses for help with either accounting or imputed income when somebody is underemployed. We also use expert witnesses to help with child custody determinations.
- Other third-party witnesses: we often get other third-party witnesses that know a lot about you, your spouse, and your situation. This can be family, friends, teachers, and the like.
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.
What To Expect After My Divorce Trial
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.