If you and your spouse weren't able to resolve all the issues in your divorce, you're probably wondering what will happen at your divorce trial. It's pretty much a given that you and your spouse will have to testify, but whether you'll need others to testify as well depends in large part on what you're fighting about. In certain instances, bringing in witnesses may be unavoidable.
Basic Issues a Divorce Trial Will Address
There are four subjects that normally require attention in a divorce trial, and each of them may involve witnesses:
- the grounds (reasons) for the divorce
- child support and spousal support (alimony)
- custody and parenting time (visitation), and
- property division.
Grounds for Divorce
This used to be an area in which spouses frequently called witnesses to prove or disprove accusations, such as adultery or abuse. Having a witness was a good way to try to avoid a he-said/she-said standoff.
However, the advent of no-fault divorces has reduced some of the animosity many people associate with the divorce process. Separation for a certain period of time (usually a year to 18 months), or irreconcilable differences, are generally easy to prove without testimony from anyone other than the spouses.
This is not to say that some people won't want their pound of flesh and demand that the divorce proceed on fault-based grounds. If that's the case, witnesses will probably be necessary.
Child and Spousal Support
Child support trials don't normally require testimony from anyone other than the parents. The court gathers financial data from the parents early on in the divorce process, and applies that data to the state's child support guidelines, which will result in a support amount. The procedure is relatively cut and dried.
Spousal support, on the other hand, can be tricky. There are a number of factors a court must look at to determine if alimony is warranted in a case. If it is, then a judge has to decide the amount and duration of support. Such things as the spouses' health, income, and prospective earning ability come into play. If there's disagreement on those topics, then it may be necessary to call witnesses to validate, or contest, a spouse's assertions. It's not unusual to have medical professionals and vocational experts testify in these situations.
Whether it's child support or alimony that the court is addressing, if spousal income becomes an issue, you may want to retain a forensic accountant to testify. These professionals are trained to handle financial disputes and trials. This is common in cases where a spouse owns a business, and the other spouse claims that the business is being used to hide money.
Custody and Parenting Time
Parents often resolve child-related issues on their own. However, a divorce with children can be the most contentious of all types of divorce trials. And this intensity ratchets up exponentially if there's an allegation of child abuse or endangerment.
Many times, family members and friends will be brought in to testify as to the relationship between each of the parents and their children. Mental health professionals and social services representatives often take the stand, after having interviewed the parents and children, and conducted an investigation.
Distribution of Marital Property
The house, bank accounts, retirement plans, furniture, and other personal belongings are considered assets that can fall under the heading of marital property. Witnesses aren't usually required to determine how to divide property in a divorce.
Although some of these items may require a professional for appraisal purposes, that aspect of the divorce is frequently handled outside the courtroom environment. Sometimes the spouses agree on an appraiser. But even if each opts to retain their own, most ethical appraisers will typically be in the same ballpark, whether evaluating a house, jewelry, or other property. And if that's the case, there's little for the spouses to argue about regarding an asset's worth.
That said, some appraisers may bend to a client's wishes if asked to overvalue or undervalue property. Additionally, there may be some assets—such as antiques—that might be difficult to value and generate a legitimate dispute between appraisers as to a correct valuation. In cases like these, it may be necessary for these experts to appear in court, so a judge can assess their expertise, credibility, and the basis for their opinions.
Will My Divorce Trial Be Private?
With certain exceptions—such as some cases involving juveniles—court proceedings are generally open to everyone. This is true for divorce, as well.
As a practical matter, most divorce cases are not of great interest to anyone not directly involved. So it's very common to see an empty gallery during a divorce trial. But that doesn't mean someone can't wander in and observe the proceedings.
However, a judge may determine that sensitive information which might be revealed during the trial could be considered confidential, or unduly damaging, particularly if it involves a child. In these situations, courts have discretion to close the proceedings to the public.
Whether or not to call witnesses, and which ones to call, can have a major impact on a divorce trial. If you have questions, you should speak to a local divorce lawyer.