You’ve filed for divorce, attended countless mediation sessions, and endured settlement conference after settlement conference with your attorney, but you and your spouse just can’t seem to reach an agreement. Now what? For every 99 divorce cases that wind up settling, there is usually one that simply goes nowhere without the aid of a judge. Perhaps the financial situation is too complicated, one party thinks he or she deserves a larger portion of the marital estate, or the parties can’t agree on who should residential custody of the minor children. Once it’s clear that negotiations have failed, it’s time to get ready to go to trial. But before you step up to that witness stand, you still have several more hoops to jump through.
Once it becomes clear that you and your spouse cannot reach an agreement as to the major points in your divorce, you may wish to hire an attorney. No matter what kind of legal action you are engaged in, the most important thing to look for in an attorney is someone with whom you feel comfortable and who facilitates communication. Attorneys who are never available by phone and who never seem to have time to speak with their clients are usually overworked or avoiding something. A good attorney will generally return phone calls within 24 hours and will make time to sit down with their clients to explain any progress in their case at a client’s request.
The first thing your attorney will do after meeting with you is to prepare a Petition for Divorce and make arrangements to have served on your spouse. However, it is not always necessary to have your spouse formally served with a copy of the Petition. A friendly letter from your attorney advising your spouse that you have filed a for dissolution of your marriage, stating that you wish the process to remain amicable, and advising him or her that they may want to also seek legal representation can go a long way towards setting a non-confrontational tone for divorce negotiations.
Once your spouse has received the Petition for Divorce, either via a friendly letter or a professional process server, he or she will have a set amount of time, typically 30 days, in which to respond to the petition. Don’t be alarmed if your husband, who may have privately agreed that the children should live with you, seeks sole custody in his response or counter-petition for divorce. Such Petitions are often filed as boilerplates by attorneys and constitute nothing more than negotiating tactics. If you feel that your spouse has seriously misrepresented his position on major issues in the divorce, however, make sure to inform your attorney immediately.
If you think you’ve turned over a lot of documents, financial and otherwise, so far, you haven’t seen anything until trial discovery starts. During this phase, the attorneys on each side will be seeking mountains of documentation from each other, including everything from old checkbook registers to the children’s report cards. Expect your legal bills to rise drastically as your attorney (and probably several others) sift through this huge volume of information and organize it into trial exhibits. Additionally, the attorneys may want to take the depositions of you and your spouse in addition to any witnesses you may have. A deposition is simply the opportunity for the opposing attorney to ask you questions, usually in a conference room, in the presence of your attorney and a court reporter. The court reporter will transcribe the entire session for future reference.
The goal of any divorce is to negotiate a settlement without having to proceed to trial. Once discovery has been completed, you and your attorney will undergo a period of negotiations with your spouse, in the hopes of reaching an agreement on all the outstanding issues in your divorce. If such an agreement can be reached, it will be reduced to writing in a document called a “marital settlement agreement.” Once both parties have signed the marital settlement agreement, you can proceed to finalize your divorce in a short court hearing.
There are two kinds of witnesses in civil litigation: expert witnesses and lay witnesses. Lay witnesses in divorce cases usually consist of you and your spouse, and perhaps a few family members or friends on each side. In a case where custody is at issue, lay witnesses might testify, for example, as to your relationship with your children and what they have observed of your parenting style. If property is at issue, your Great Aunt Irma might take the stand to tell the judge that she gave you the antique Chippendale in your foyer, and that it was not intended as a gift to the marriage but to you personally.
Expert witnesses, on the other hand, are called to testify because of their expertise in a specific area of law. For example, if you’ve had a custody evaluation performed in your case, the evaluator may take the stand to explain what he or she observed of your interactions with your children. If the value of the marital residence is at issue, your attorney might call a professional real estate appraiser to testify as to the fair market value of your home. Each party is required to turn over their list of lay and expert witnesses to the other side well in advance of trial.
Prior to trial, expect to meet with your spouse and his or her attorney several times. As trial nears, the attorneys will continue trying to narrow down the trial to as few issues as possible. During this time, both sides might be willing to give in bit more than they were previously, as each party focuses on the issues that are most important to him or her. In the weeks before trial, you need to be as available as possible to your attorney. Plan on fielding a lot of phone calls as both parties prepare for the big day.
While some states allow jury trials in divorce cases, many do not. Whether your trial is before a jury or a only a judge, don’t be intimidated by the packed courtrooms seen on television. In reality, divorce trials are usually small, private matters, with only a few friends or family members in the courtroom. During the trial, the party who filed for divorce first presents their evidence first. Once that party has completed presenting their testimony to the finder of fact, the other side will get to present its case.
There is still the possibility of reaching a settlement during the trial, and many parties reach a settlement agreement after both sides have presented their evidence but before the judge or jury has reached a decision. Because neither a judge nor a jury knows the entire history of your marriage, it is always in the best interests of the parties to work towards an agreement everyone can live with, rather than having a stranger or group of strangers make decisions that could affect you for the rest of your life.
If the result of trial was not the one you were looking for, you will have a short period of time (typically 30 days), to file a “Motion to Reconsider.” In such a motion, a party asks the court to reconsider her decision at trial. Usually, a Motion to Reconsider alleges that the judge did not fully understand one of more of the issues in the case or based her decision on improper evidence. Such motions are extremely difficult, but not impossible, to win. If your Motion to Reconsider is denied by court who ruled on your divorce, you then have a set amount of time to file an appeal. And appeal asks a higher state court to review the judge’s finding in your case and determine whether it was fair and proper.
In addition to as Motion to Reconsider and appeal, you may find yourself back in court numerous times following your divorce. Especially in cases where children are involved, circumstances change quickly and may require a modification of such things as your child support payments, school tuition, spousal support, and other provisions of your divorce. Such requests are usually simple to file and litigate, and may or may not require the assistance of an attorney.