What happens at a divorce trial? If you have never been through a divorce before, the idea of a trial can feel intimidating.
Maybe you’ve seen courtroom dramas on television where attorneys deliver dramatic opening statements, witnesses break down on the stand, and a judge makes a life-changing decision in a matter of minutes. Real divorce trials are very different. A divorce trial is usually much less dramatic than television makes it appear. It is also a process that most divorcing couples ultimately avoid by reaching a settlement before the trial date.
Still, understanding what happens if your divorce does go to trial can help you prepare, make better decisions and understand why your attorney may continue encouraging you to settle.
Divorce Litigation Usually Starts With the Possibility of Trial
When a couple chooses litigation, the case generally moves through a series of procedural steps.
In Maryland, where I practice law, a divorce case typically begins with the filing of a complaint. Depending on the jurisdiction and the issues involved, the parties may then have a scheduling conference, hearings regarding issues such as support or parenting, and eventually a settlement conference.
The purpose of these steps isn’t simply to prepare for a trial. There are opportunities throughout the process to resolve the case.
In fact, that settlement should remain the goal even after a trial date has been scheduled.
Sometimes couples arrive at court prepared to litigate, only to negotiate an agreement after being asked whether there is anything they can do to resolve their differences.
In other words, having a trial date doesn’t necessarily mean you are going to trial.
Why Do Judges Encourage Couples to Settle?
It isn’t because judges don’t want to make decisions.
It can be better for both people to walk away somewhat dissatisfied with an agreement they helped create than to have a judge make the decisions for them.
There is another important consideration, especially when children are involved.
Things said during a trial cannot be unsaid.
When spouses are fighting in court, each side may present evidence and testimony that portrays the other person in a negative light. Some of those statements may be necessary to address legitimate legal issues, but others can add fuel to an already difficult relationship. That can have consequences beyond the divorce itself.
If you will continue to co-parent, maintaining some ability to communicate after the divorce is truly important. Turning the divorce into an all-out character battle can make that much harder.
A Divorce Trial Is Not Like Television
One of the biggest misconceptions about divorce trials is that they are dramatic.
There are rules of evidence governing what can be presented to the court. Just because you have a text message, email or story that you believe proves something doesn’t necessarily mean the judge will hear or consider it in the way you expect.
For example, you might have hundreds or even thousands of text messages between you and your spouse. That doesn’t mean you’re going to hand all of them to the judge. Instead, attorneys may need to identify the particular messages that are relevant and admissible.
The same principle applies to other evidence. A trial is not an opportunity to tell the judge every frustrating thing that has happened during your marriage. It is about presenting evidence that is relevant to the legal issues the court has to decide.
Your “Day in Court” May Not Feel the Way You Imagine
Many people going into a trial have something they desperately want to tell the judge.
They may feel that their spouse has treated them terribly and believe that if the judge could just hear the whole story, everything would make sense. But a courtroom isn’t the place to tell your entire story exactly as you would tell it to a friend.
There are rules, procedures and time limitations. You may testify, and your attorney may question you. The opposing attorney can then cross-examine you. Your spouse may offer an entirely different version of events. And you may have to sit there while that happens without immediately responding.
That can be incredibly frustrating.
Clients sometimes struggle with the fact that they cannot simply jump in and correct something they believe is untrue. They have to wait their turn. That is one reason trial preparation matters so much.
Keep Your Emotions Under Control
One of the most practical pieces of advice I can give involves something that has nothing to do with legal arguments: your behavior in the courtroom.
Your attorney is focused on the judge, the testimony, objections, evidence and the legal record. But the judge and court personnel can see you.
If you are making faces, shaking your head, rolling your eyes or visibly reacting to testimony, the court may notice. Even if your reaction feels completely justified, it can potentially distract from the case you’re trying to present. I recommend maintaining a “poker face” and taking notes rather than reacting.
That may be easier said than done. After all, you’re sitting there listening to someone you may have been married to for years say things about you that you believe are completely false. But your attorney’s job is to present your case. Your job is to remain composed and let the process work.
Who Actually Ends Up Going to Trial?
There is no single profile of a person who goes to trial. Every divorce case is unique. Sometimes the person who ultimately goes to trial is someone who feels they have little to lose by doing so.
That might be a person who has limited access to their children or someone with a significant need for alimony or support who believes the settlement offers are insufficient.
In other cases, the problem is that one spouse simply refuses to compromise. Situations involving abusive behavior, narcissistic behavior or an attitude of “my way or the highway,” where reaching an agreement may be extremely difficult often end up in a trial.
But even then, my approach is to look for every possible opportunity to resolve the case without a trial.
Don’t Go to Trial Just to Prove Your Spouse Is a Bad Person
There is a difference between having legitimate legal issues that require a judge’s decision and wanting a judge to hear how terrible your spouse is.
You may genuinely feel that your spouse behaved terribly during the marriage. You may have years of anger, resentment and hurt that you want someone in authority to acknowledge. But a divorce trial isn’t necessarily designed to provide that emotional validation. And even if you get the opportunity to tell your story, you have to ask yourself what happens afterward.
Does saying everything you want to say actually improve the outcome?
Sometimes it doesn’t.
I have had situations in which a client rejects a settlement offer because they want their day in court, only to receive essentially the same result from the judge that they had previously been offered.
In some circumstances, the result can even be less favorable after the parties spend significant time and resources litigating.
There May Be More Settlement Options Than a Judge Can Give You
When you negotiate, you may be able to create solutions tailored to your family’s circumstances.
For example, parenting issues may involve specific safeguards or arrangements that address concerns about a child’s safety or a parent’s behavior. At trial, the judge is constrained by the law and the evidence presented.
That means the tools available during negotiation may sometimes be broader than the remedies a judge could impose. This is one reason your attorney may encourage you to continue negotiating even when you feel completely stuck.
How Do You Prepare for a Divorce Trial?
Trial preparation depends on the specific issues in the case. If custody and parenting are involved, for example, the parties may need to develop parenting plans and identify exactly what remains unresolved.
Is the disagreement really about legal custody, such as who gets final say about education or medical decisions? Or is there a more significant safety concern that requires safeguards? Narrowing the issues is important.
The more clearly you can identify the actual disputes, the more effectively your attorney can prepare for them.
Gather Your Documentation
Clients should work with their attorneys to have relevant exhibits organized before trial.
Depending on the case, that might include:
- Text messages
- Pay stubs
- Tax returns
- W-2s
- Health insurance costs
- Extraordinary medical expenses
- Work-related childcare expenses
- Documentation related to parenting or access
- Other evidence relevant to the issues being litigated
The goal is to be prepared rather than searching for documents while you’re sitting in court.
Know Your Weaknesses
I prepare clients for the kinds of questions opposing counsel may ask and makes sure they aren’t surprised by difficult issues during testimony.
That can be uncomfortable, but it is far better to confront a weakness during preparation than for the first time on the witness stand.
Practice
For some clients, particularly those who are nervous or uncomfortable speaking in public, preparation may include going over potential questions and answers. Sometimes an attorney may determine that another witness can better explain a particular issue. That could be another family member, a professional or an expert who has specific knowledge about the issue.
The Most Important Trial Preparation Is Deciding What Really Matters
Preparation isn’t about getting ready to fight. It’s about figuring out what is worth fighting for.
You could spend hours preparing evidence about every disagreement you’ve ever had with your spouse. But if that evidence doesn’t affect the issues the judge needs to decide, it may not help your case. Instead, focus on the major unresolved issues.
What needs to be decided about parenting?
What needs to happen with the house?
How should assets be divided?
Is support an issue?
What evidence actually relates to those questions?
The more focused you are, the more useful your time, money and emotional energy can be.
Settlement Isn’t Giving Up
If you’re facing the possibility of a divorce trial, it can be tempting to think that settling means losing. But settlement isn’t necessarily surrender.
It can mean deciding that you would rather have a voice in the outcome than hand the decision to a judge. It can mean protecting your ability to co-parent. It can mean avoiding the expense and stress of a trial. And it can mean choosing which issues are truly worth fighting over.
Of course, there are cases where trial is necessary. If a reasonable agreement cannot be reached, or if the circumstances require a judge to make decisions, litigation may be the only path forward. But even then, understanding what you’re walking into can make the process less frightening.
In closing, know your issues. Know your evidence. Know your weaknesses. Control what you can control. And before you decide that you need your day in court, ask yourself what outcome you actually want when that day is over.