One of the things you will learn about divorce is that it is a process, not an event. Trial procedure involves various hearings and meetings along the way to a trial. The following describes the procedure of a typical divorce trial. The rules of procedure in your jurisdiction may differ in some details but will generally follow those that will be described.
Once the complaint has been filed and served, the court will notify the parties of a scheduling hearing. Many courts use scheduling hearings for calendar control. At this hearing, you can ask for certain court services and the judge sets several dates for your trial.
Services
Many courts provide some or all of the following services in divorce cases:
- Parenting classes can be scheduled for couples who dispute physical custody.
- A custody evaluation or an attorney can be requested to represent the children.
- An interpreter may be provided if you require one during the proceedings.
- A drug test or mental health examination can be performed upon your spouse.
- Mediators may be appointed by the court for temporary support, custody, and other financial issues.
Note The attorney representing the children may be called a “children’s attorney” or a “guardian ad litem” in your jurisdiction. The difference lies in the scope of representation. The American Bar Association recommends calling them “best interest attorneys” and defining their duties in the court order appointing a best interest attorney.
Dates
The court will set the following dates at the scheduling hearing:
- A date by which discovery must be completed (the discovery process will be explained in the following sections)
- Upon request, a date for a pendente lite hearing (this will also be discussed)
- A date by which financial statements are due
- A date by which the parties will be ordered to file joint-property statements
- A date by which the parties must file a pretrial statement
- A date for a pretrial settlement conference, at which the trial date will usually be set
If your case involves a custody dispute, many courts will bifurcate the case. This means they will split your case into two trials, one to resolve custody and the other to resolve everything else. If that happens, you will have two sets of dates for mediation, discovery, and other pretrial matters. The court will issue a scheduling order with all the dates that were set at the scheduling hearing. The judge will not make any decisions in your case at the scheduling hearing except for the setting of dates.
Note Some courts do not have scheduling hearings but instead leave it up to the attorneys to call the clerk and schedule dates.
Pendente Lite Hearing
Pendente lite is Latin for “pending the litigation.” A pendente lite hearing is held to determine temporary issues. You may hear the judge and attorneys refer to it in shorthand as a “p.l. hearing” or ask if there are any p.l. issues. Temporary issues refer to those that need to be addressed between now and the trial. This can be a long time, especially if you are the one who is paying support and the trial is several months away. You may want to ask the court for temporary orders for child custody, access, child support, alimony, or attorney and expert-witness fees. At the trial, these issues are considered anew and a permanent order is entered by the trial judge.
The purpose of the p.l. hearing is to maintain the status quo so that both parties are able to continue with the litigation until trial. If the wife controls all the assets of the marriage, for example, the court might order her to pay for the husband’s attorney fees and expert-witness costs to level the playing field so that she doesn’t have an unfair financial advantage over the husband in the litigation process.
If pleadings are the first phase of divorce litigation and the trial is the last phase, then discovery is the middle phase. Discovery means finding out information about the other party that you don’t know. The discovery rules of the court set forth the methods by which each party is able to find out about the other’s case. The reason for discovery is that it prevents surprises at trial and it encourages settlement. Discovery mainly takes place between the parties and the results are not filed with the court. You have a continuing duty to update the other party on the responses you give through discovery. In fact, the opposing counsel may send you a trial subpoena, which is an order to bring updated account statements and other documents to court on the day of the trial.
What May Be Discovered
The scope of discovery is very broad. You are entitled to discover any evidence relevant to your case and also anything that might lead to relevant evidence. In a divorce, this means anything related to the marriage, children, property, debt, income, or expenses.
Interrogatories
A party may serve the other party with written questions. An example is “Where are you employed and what is your salary?” The other party has a certain number of days to respond with the answers in writing, sworn and signed under penalties of perjury. The answers may be used in trial in the same way as testimony.
If the party that has been served does not respond in the time provided by the rules of discovery, the counsel for the party processing the interrogatories will try to contact the other counsel by telephone and written correspondence to make a good-faith effort to resolve a discovery dispute outside of court. If those attempts are unsuccessful, the attorney requesting the interrogatories may file a motion for sanctions with the court. The sanctions range from attorney fees to prohibiting the nonanswering party from presenting or defending claims.
The answering party may set forth any objections he has to the questions in an answer to the interrogatories. But if the responses are incomplete or insufficient, then the requesting party’s counsel will usually send a deficiency letter stating what is still needed. If that is unsuccessful, the requesting party can file a motion to compel discovery and the court will issue an order. If the nonanswering party does not comply with the order compelling discovery, the requesting party can ask for sanctions.
A motion for a protective order can also be filed against burdensome or oppressive discovery requests.
Note It may not seem fair, but answering your discovery is not dependent on your spouse answering her discovery.
Document Requests
You can ask the other party to produce certain documents or other items or to permit you to enter his residence and inspect his property. This rule is usually used in divorces to obtain copies of tax returns, pay statements, bank statements, and credit card statements. You can also ask your spouse to produce deeds, car titles, loan applications, resumes, telephone bills, calendars, diaries, report cards, legal bills, investigator reports, and other documents.
Like with interrogatories, you can object to replying to document requests, but failure to respond or to respond adequately can lead to a motion to compel production of documents and sanctions.
Request for Admissions
You can also send your spouse a request that she admit certain statements of fact. For example, you might write, “You broke into our house and removed all the furniture.”
Your wife has a certain number of days to admit or deny these statements.
If your spouse does not respond, the requests are considered admitted by the court.
Caution If you fail to answer a request for admissions promptly, the statements will be considered as being admitted by you, which can have dire consequences for your case.
Depositions
Depositions are events where a lawyer asks verbal questions of a witness and the witness gives verbal answers after being sworn to tell the truth under penalties of perjury. You may depose your spouse and other witnesses. You may request the witness to bring documents to the deposition. The deposition is before a court reporter. The court reporter can make a transcript of the deposition that can be used later at trial if the witness changes his testimony.
An examination at trial using your deposition transcript might go like this:
Wife’s lawyer: And you think your wife should get nothing, right?
Husband: I think she should get a fair amount.
Lawyer: Do you remember giving your deposition in my office on July 12, 2013?
Husband: Yes.
Lawyer: And you swore to tell the truth in that deposition, right?
Husband: Yes.
Lawyer: Directing your attention to page 25, line 5, of the transcript, you see the question “How much do you think your wife should get?” Your answer is: “She deserves to get nothing.” Did I read that correctly?
Husband: Yes.
The lawyer has impeached the witness’s credibility by using his deposition. In closing, the lawyer can argue that we don’t know if the husband is telling the truth today or at his deposition, but we do know one thing: He speaks out of both sides of his mouth and should not be trusted on anything.
Third-Party Subpoena
You can send subpoenas to your spouse’s employer, bank, pension plan administrator, and other third parties to obtain statements directly from them instead of relying on your spouse to produce them.
Court-Ordered Mediation
The court can order the parties to go to mediation. The fact is that the majority of divorce cases settle before trial. If the parties are not speaking and their lawyers are focused on litigation, court-ordered mediation may be the first time that everyone is in the same room at the same time talking about a settlement.
Pretrial Hearing
Typically, the parties will be required to submit a pretrial statement to the court at the pretrial hearing. The pretrial statement tells the judge the status of mediation, discovery, and motions and about the disputes at issue, any agreements, trial exhibits, and witnesses. The judge will usually ask the lawyers whether there is a chance for settlement.
Stipulations
Uncontested facts may be stipulated. For example, there should be little dispute over the age and health of the parties, the date of the marriage, or the names and birthdays of the children. Make as many agreements as you can, like what property is marital and what property is not.
Getting Ready for Trial
Before the trial, read the pleadings, the discovery responses, the trial exhibits, and the deposition transcripts. Your lawyer will probably go over your testimony and exhibits with you and your witnesses as well.
The Trial
The trial is the big show. It is the climax of all that we have discussed so far. The bailiff will say something formal like, “Oyez, Oyez, Oyez. The court of the Honorable Judge Arnold Andrew is now in session. All draw near and give your attention.”
Opening Statements
The court will allow the lawyers to summarize their cases in opening statements. The plaintiff’s lawyer goes first and then the defendant’s lawyer. After opening statements, the plaintiff’s lawyer will call the first witness, which will likely be you if you are the plaintiff.
Direct Examination
Your lawyer will conduct your direct examination and present all the facts in your case. She will ask you questions about the courtship, your marriage, the children, the troubles in your marriage, and the separation.
Then, she will ask questions about your income, property, and legal fees. She will ask about getting a name change if you want one.
Your spouse’s lawyer has the right to object to testimony that violates the rules of evidence, and the judge will rule on the objection. Then, you may continue to testify.
Cross-Examination
During the subsequent cross-examination, your spouse’s attorney can ask you questions about anything you said on direct examination.
Redirect Examination
Your attorney will have a chance during the redirect examination to question you again about anything you said on cross-examination that wasn’t clear or needs to be explained.
Other Witnesses
Your lawyer will call your other witnesses and they will be examined one by one by your lawyer and your spouse’s lawyer with direct, cross-, and redirect examination. Expert witnesses will be qualified and testify as to their opinions. (To qualify an expert, your lawyer will call the expert to the stand and ask him questions about his education and experience and then ask the court to approve his qualification as an expert.) If alimony or child support are issues in your case, then you will need to present evidence of your spouse's income. Sometimes the only way to do this is by calling your spouse as the last witness in your case only for this purpose. Then the plaintiff rests.
Defendant’s Case
Now, it is your spouse’s turn to present his case. His lawyer will ask him questions on direct examination and your lawyer will have a chance to cross-examine him. The case will proceed as yours did until the defendant rests.
Rebuttal
The plaintiff may call additional witnesses to rebut any evidence that came up in the defendant’s case and which was not addressed in the plaintiff’s case. Likewise, the defendant may call witnesses to rebut what the plaintiff’s witnesses say.
Closing Arguments
At the conclusion of the trial, the lawyers are permitted to make closing arguments to the judge. They will direct the judge’s attention to that evidence and law that favors what their client is asking for. The plaintiff’s lawyer goes first and then the defendant’s lawyer, and the plaintiff’s lawyer is allowed to respond to what the defendant’s lawyer says.
Decision
The judge may announce a decision immediately or take the case under advisement and issue a decision on a later date. The court’s decision is your decree of divorce. If you are dissatisfied with the result, you have a short amount of time to file a motion for reconsideration or a notice of appeal. A motion for reconsideration will be ruled on by the same judge who tried your case. An appeal will be decided by a panel of different judges.
Summary
Divorce-trial procedure consists of several hearings and meetings. The discovery procedures are used to avoid surprises at trial and encourage settlement. Everything you have learned in this book comes together at the trial. In the next chapter, I will discuss the latest developments in family law involving same-sex couples, and the last chapter will deal with postdivorce issues.