What to Expect if Your Divorce Goes to Trial
If you are having a difficult time coming to a settlement with your ex about the terms of your divorce, you may have to take your divorce to trial. In a divorce trial, all or some elements of your divorce will be decided by a judge. This means you will need to prepare for trial in order to put your best foot forward and give yourself the best chance of a good outcome. If you are in San Antonio, contact a lawyer from Higdon, Hardy & Zuflacht, L.L.P. at (210) 349-9933 for guidance.
What is Considered in a Divorce Trial?
Trials for divorce are rare, and often legal professionals will only resort to a trial after all other options have been exhausted. In a trial, any part of your divorce that you have not previously settled on will be decided definitively by a judge. Depending on the type of dispute, you will need to be able to produce certain evidence in order to have your case considered.
If the judge will be deciding on property division, for example, you will typically need to produce documentation explaining what the asset is as well as its value. Other financial considerations, such as alimony and child support, can become quite complicated. The judge will need to weigh the payer’s ability to pay, the receiver’s need for the money, and the general standard of living on both parties. Usually, both parties will need to produce bank statements and income records, and make compelling arguments for your position.
The judge may also rule on child custody in a trial. When a judge is deciding who to award primary custody of the children to, they must often weigh a massive amount of evidence presented by both sides – including digital (text messages, emails, pictures) as well as physical (health records, school progress reports, finances) evidence. Typically, the judge will only consider acts that are relevant to the child.
How Do You Prepare for a Divorce Trial?
There are a number of processes and procedures that go into putting together and presenting evidence for a trial. These include:
- Financial affidavits – Typically, you should be producing two pictures of your financial situation to help the judge understand: one from when the case was first filed, to give background, and one that details your finances immediately before the trial.
- Depositions – Depositions occur before the trial in front of a court reporter. This is like cross-examination, except that the questions asked here tend to be far more open-ended in order to learn more about the case. You may depose anyone relevant to your case, including your ex, family and friends, and experts such as accountants.
- Disclosure – In the interest of fairness, all evidence gathered before the trial will need to be reported to the other parties in the case. There is a typically a predetermined deadline past which you cannot admit new evidence to the case. You may also request evidence from the other party.
Your preparation for trial should ultimately work to gather as much evidence as possible to support your ideal divorce order. A lawyer will be able to help you understand what evidence might be needed and how to get it.
What Happens Before the Trial?
Once all of this is prepared, there will be a pre-trial hearing. Before the pre-trial, a memorandum will be submitted outlining the facts of the case so that the judge has a chance to review them. At the pre-trial hearing, the judge will consider the following:
- Any pending motions filed by either party
- Any final requests for amendments to the pleadings (if the pleadings are not amended by this point, it will then go to the judge’s discretion)
- The deadline for on disclosure of new evidence
- Stipulations on the evidence or witnesses, in order to speed the trial up
- What issues are to be discussed and resolved, particularly if you and the other party have been able to come to an agreement on some issues before the hearing
Finally, the judge will set the time and amount of time a trial can take. It is important to stay within this timeframe, as exceeding it can result in the trial being delayed for weeks or months.
What should I expect on the day of the trial?
The day of the trial will be intense, but by now you have prepared, and are familiar with the court, the judge, and how the trial will work. The trial is typically broken up into the following segments:
- Opening Statements: Both parties give an opening argument, summarizing what you want and why you want it.
- Presentation of evidence: Each side will submit evidence that is relevant to their case.
- Examination of witnesses: This would include you and your spouse, as well as expert witnesses to speak about finances or child custody. Other third-party witnesses that know one or both of the spouses well may also be brought in.
- Cross-examination: This is the chance for one side to ask questions of the other side’s witnesses.
- Closing arguments: This is the lawyer’s final chance to make a case using the evidence admitted during the trial.
Each side will be able to complete all of these steps. The plaintiff (or person who initially filed for divorce) will present their case, including evidence and witnesses, first, followed by the defendant. The plaintiff will be granted time to rebut the defendant’s case before each side makes their closing arguments.
After the closing arguments, the judge will offer their final decision. As always, there is the chance to appeal if one party believes that the judge made the incorrect decision on the basis of the law, but appealing can be difficult.
The fact is, divorce cases can be highly complex and often are best resolved with the help of qualified legal representation. If you live in the San Antonio area and are currently going through a divorce case, or if the divorce case looks set to go to trial, contact the San Antonio area divorce trial lawyers of Higdon, Hardy & Zuflacht, L.L.P. today at (210) 349-9933 to speak with a member of our legal team about your case. We are here to help you through this process and to help you get the outcome that you need in the wake of a divorce.