Pretrial Settlements
You’ll only have to go to trial in your divorce if you aren't able to settle your case beforehand. If it’s at all possible, settling your case before trial is the best choice because it allows you to retain control over the outcome. If you can’t settle, you’ll have to go to trial before a judge, who is admittedly a legal expert, but who’s a stranger to you and may not understand your values, choices, background, and experiences.
Settling a divorce case doesn’t necessarily mean you and your ex-spouse have to agree on everything. You can reach a partial settlement where you agree on some issues and decide to allow a court to make a ruling about everything else. This is called “narrowing the issues.” For example, Spouse A might agree that Spouse B can have physical custody and residence of the parties’ children (meaning, the children will live with Spouse B most of the time), but still disagree about how much child support Spouse A will have to pay. Both spouses then tell the judge that they’ve agreed about child custody, but still need the court to decide the amount of child support.
So if you’re going to trial, you may be placing all or just some of the issues before the court for decision. Along the road to trial, you’ve probably attended at least a hearing or two. A hearing is different from a trial because the judge makes decisions about the disputed issues, but the decisions are only temporary and they only last until the judge issues a final order.
Apart from settlement, a divorce trial is the only way that a court can make a final decision about your case. If you go to trial, you and your ex can expect to work frantically on settlement up until the minute that the judge calls your case. Once the trial starts, you can still take issues off the table by continuing to negotiate during breaks.
What Happens Once the Trial Begins?
When the trial starts, you’ll almost always find that your case is going to be tried in front of a judge without a jury (“bench trial”). Juries are only used in divorce trials in a small number of states, and even then, they’re only authorized to decide a very small and limited number of issues.
You and your ex will call witnesses and submit other kinds of evidence, like documents such as financial statements or bills. You’ll also try to discredit your ex’s witnesses with a strong cross-examination and attempt to keep other evidence off the record by arguing that it’s without legal merit. The purpose of a divorce trial is to discover what is true and what isn’t, so showing that your spouse’s evidence isn’t valuable is just as important as introducing your own evidence.
Issues that are commonly litigated at trial include:
- child custody
- child support
- visitation
- alimony
- home ownership, and all the financial matters associated with it, and
- division of assets, liabilities, property, and debts.
After the trial ends, the court will take your case “under advisement,” meaning the judge will take some time to reflect on the facts of your case and apply them to the divorce laws in your state. Once the court makes its decision, it writes a final order—also referred to as a divorce decree or final divorce judgment—which contains rulings on all the issues and states the reason the judge made those rulings, so you’ll understand why the judge made a decision.
The final order is just that—final. You may be able to appeal some of the issues under certain circumstances, but unless and until that happens, you’ll have to live with the terms and conditions specified in the divorce judgment. Any temporary orders the court issued at hearings aren’t in effect anymore—the only thing that governs you and your spouse is what’s written in the final order. That’s why it’s so important, if possible, to have a lawyer representing you at trial, to convince the judge to rule in your favor.