The overwhelming majority of divorce cases settle. Settlement is ultimately preferable in that it provides the litigant with a measure of control over the outcome of his or her divorce as well as a measure of finality. Sometimes divorce cases settle quickly. Other times, they take a little longer to settle, especially in cases involving custody disputes or in cases where one or more parties is self-employed and has business interests that must be valued.
There are some cases, however, that simply cannot be settled and must be tried. But what does “going to trial” mean for the litigant?
First, trial requires preparation. By the time your case is tried, discovery –the process of exchanging information and expert reports – should be completed. At trial, your divorce attorney will present the relevant discovery to the court. With respect to documents, your attorney is typically asked to identify in advance or “pre-mark” any documents or “exhibits” he or she intends to rely upon at trial. Because there are rules in place as to how evidence must be presented to the court, your divorce attorney may have to make arrangements for witnesses to appear at trial to authenticate certain documents or to testify about the contents of those documents.
For example, expert reports, such as custody evaluations, real estate appraisals and business valuation reports, cannot be presented to the court without the expert’s live testimony unless the parties agree or “stipulate” otherwise. Therefore, absent such a stipulation, your attorney and perhaps you will need to meet with any expert witness in advance of trial to review his or her oral testimony.
Your divorce attorney will most likely be asked by the court to prepare and file pre-trial submissions, such as joint stipulations and a pre-trial memorandum. The purpose of these documents is to provide the court with a synopsis of the facts in your case, to alert the court to any resolved issues, and to detail your desired outcome with respect to any issues that remain in dispute. Since you are most familiar with the history of your marriage and the way in which you would like the issues in your case resolved, your attorney will most likely seek your input with respect to these pre-trial submissions.
Lastly, in terms of preparation, you will most likely need to make time in advance of trial to meet with your attorney and to prepare your testimony as well as to assist with the preparation of questions for your spouse and other fact witnesses.
This brings me to the second requirement of trial – a substantial time commitment. Depending on the number of disputed issues in your case and the number of witnesses to be called, your divorce trial can take as little as a day or two or as much as 10 days or more. Because the court controls its own calendar, neither you nor your divorce attorney have control as to whether those days are scheduled consecutively. The more days your trial requires, the less likely it is that you will be provided with consecutive court dates. Moreover, your case is usually not the only case before the court on any given day. Thus, your scheduled trial time may be interrupted by other matters. For these reasons, a 10 day trial can take a month to several months to complete.
As the litigant, absent a compelling reason, you are generally expected to appear at trial every day as scheduled by the court. In addition to trial appearances, you will need to make time to meet with your attorney outside of court. Trial is a fluid process; new issues arise constantly. As such, you and your attorney will need to continually prepare throughout the course of trial. Thus, the time you and your attorney must devote to trial is significant.
The last requirement of trial is patience. As stated above, it can take weeks to months for your trial to conclude. Once trial concludes, the court will review the evidence and testimony presented at trial by both sides and will issue either a written or verbal opinion relative to its determination of the disputed facts and legal issues in your case. As with the court’s calendar, your attorney has no control over the length of time it takes the court to issue its opinion – it can take weeks or months or even a year or more before the court issues its opinion.
Generally, the Court issues a Final Judgment of Divorce simultaneous with its opinion, at which time you are legally divorced from your spouse.
The entry of a Final Judgment of Divorce does not always signal the end of litigation. If either party is unhappy with the trial court’s decision and feels that the trial court missed key facts and/or misapplied the law, that party has the option of either returning to the trial court for reconsideration or seeking an appeal of the trial court’s decision at the appellate court level. These and other forms of “post-judgment” litigation will be discussed in a future article.
In sum, trial is a lengthy and complicated process that requires ongoing preparation, a substantial time commitment and patience from you and your attorney. For these reasons, it is imperative that you choose an experienced divorce attorney who is familiar with the court system and is equipped with the necessary skills to try your matter to conclusion in the event it cannot settle.
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