When individuals are going through a divorce, most want to settle their case amicable short of a trial. Practically, this does not happen in every circumstance.
In some cases, parties are just not able to settle their case. To settle a divorce, parties not only have to agree on the divorce itself, but they also have to agree on other important issues. These issues can range from property and debt division, child support, child custody, spousal support, attorney’s fees and multiple other issues.
When parties cannot agree, whether that be through mediation, collaborative divorce or through informal settlement negotiations a divorce trial is the only way to conclude the divorce. Many ask how the trial itself works in a divorce case?
The reality is different jurisdictions can handle how a trial works differently. Different judges might also handle their courtrooms differently than other judges.
But, generically speaking, this is the order in which a divorce trial takes place:
Preliminary matters – Before the trial itself begins, the judge will likely take up preliminary matters. The preliminary matters could involve motions before the court. It could also involve the court discussing some ground rules and protocols for the trial itself.
Opening statements – In some jurisdictions, the judge will allow both attorneys to give the court an opening statement. The petitioner’s attorney (the petitioner is the party who files first) generally goes first. The respondent’s attorney then goes next.
Petitioner’s presentation of the evidence – After the opening statements, the evidence is then presented to the court. The petitioner’s lawyer will get to present their evidence first. This means that they will call their witnesses. The respondent lawyer will then get to cross-examine these witnesses. (Note that in some jurisdictions, the terms plaintiff or defendant may still be used.)
Respondent’s presentation of the evidence – After the petitioner’s lawyer has presented all their evidence, the respondent’s lawyer gets to present their evidence next. This means that they will get to call their witnesses. The petitioner’s lawyer will then get to cross-examine these witnesses.
Closing statements – After the petitioner’s lawyer and respondent’s lawyer have presented their evidence, many courts will allow closing statements. The petitioner’s lawyer will get to go first. The respondent’s lawyer will then get to go next.
Conclusory Matters – After the closing statements have been made, the judge will ordinarily make some conclusory statements before concluding the trial. Some judges may rule from the bench, but most judges take the case under advisement. They judge might even ask the attorneys to give them proposed judgments. After some time, the judge will issue a written judgment with their findings of fact and conclusions of law.
Many clients ask how long the trial itself will take? Ultimately, it matters how much evidence is being presented. In some cases, a trial might take a few hours or a even a single day. In other cases, the trial might take several days or more.
Different jurisdictions and judges can certainly have their own way of doing things. But, in a general sense, this is a good guide in terms of how a divorce trial or evidentiary hearing often takes place.