Family Law and Trial
In a family law proceeding, the thought of trial can be intimidating. If
a litigant reaches this point, it means the parties could not settle matters
on their own, through counsel, or through mediation, which is required
in most family law proceedings.
Most people have never experienced an event like a trial. Many people unfamiliar
with the process assume it is similar to what they see on television.
It is not. An understanding of what to expect if you have to go to trial
can help reduce stress and intimidation. The following summarizes what
to expect should your family law case proceed to trial.
Duration of Trial
The length of time after a case is filed and prior to trial depends on
the jurisdiction in which the case is heard. Prior to trial, specific
deadlines must be met, including discovery, witness lists, and mediation.
Discovery is a fact finding process in which each side has the opportunity
to gather information about the other party (
e.g. financial information, medical information, and parenting information).
Discovery must be completed by a certain time before trial commences,
otherwise you may lose your right to perform discovery and use the information at trial.
In addition to discovery, it is imperative you fully disclose the witnesses
you intend to call at trial to testify. The disclosure generally must
contain contact information and a brief explanation of the expected testimony.
If witnesses are not disclosed in a timely manner, you may lose the right
to call a witness at trial.
Lastly, before commencing trial, it is typically required that you engage
in mediation to try and settle your differences. (Read more on
how long a divorce takes.)
A Common Myth about Family Law Trials
A common misunderstanding among family law litigants is the belief trial
is before a jury. Family law trials are not decided by a jury. They are
bench trials in which the judge alone oversees the trial proceeding and
makes decisions. Thus, presentation and appearance before a judge at trial
in a family law proceeding is of utmost importance.
The length of your trial depends on the number and complexity of issues
before the court. Generally, the length of your trial is determined at
the outset, and each party is told how many days he or she has to put
on his or her case. The party who filed the divorce presents his or her
case first, and the party responding to the dissolution presents his or
her case second. The party presenting first then will have an opportunity
to reply briefly to the issues raised by the responding party.
How Family Law Trials Work
At the outset of trial, each party is permitted to present an opening statement.
It is important to remember an opening statement is not evidence. It is
used to provide the court a snapshot of the evidence to be presented and
your trial position.
Prior to trial, each party already will have provided the court with his
and her respective trial memorandums, evidence notebooks, and proposed
final orders. Thus, prior to trial commencing, the judge should have a
basic understanding of each party's trial position and the reasons
underlying that position.
Witnesses at Family law Trials
At trial, the two most important witnesses are the parties. Presentation
and preparation for testimony is crucial to your success at trial. During
direct and cross examination, a judge carefully listens to the parties,
assessing credibility. Thus, the manner in which you provide answers is
as important as the substance of those answers.
You also should anticipate answering not only the direct examination questions
of your attorney, but also the cross examination questions from the opposing
counsel. A strong way to prepare for cross examination is to role-play
with your counsel prior to trial.
A courtroom's appearance will likely be a variation of benches in the
back of the room, two counsel tables in front of the benches, the judge's
bench in the middle and in front of the two counsel tables, and a witness
booth to the side of the judge's bench.
Courtrooms are generally open to the public unless there is a specific
reason for the proceedings to be private, but this a rare occurrence.
Thus, you should not be surprised if unknown third parties enter and leave
The level of judge interaction in your trial will depend on the judge assigned
to a case. On one extreme, a judge may be very involved, at times asking
his or her own questions and elaborating on attorney examination questions.
On the other extreme, a judge may be completely uninvolved, simply taking
notes on the proceeding. A judge will ask his or her own questions for
a variety of reasons, perhaps wanting clarification on a particular issue
or wanting to explore an area of the case not addressed by an attorney's
After each party rests his and her case, each party is afforded an opportunity
to provide a closing argument. Similar to an opening argument, a closing
argument is not evidence. A party's closing argument should focus
on the evidence presented.
Generally, an attorney providing a closing argument touches on the most
relevant and important witness testimony and documentary evidence. A strong
closing argument will succinctly address these points and conclude with
a compelling argument in support of the client's case.
Decisions by the Court
Delivery of a trial court's decision is also judge-specific. A judge
may provide the parties an oral ruling on the day the trial concludes,
provide the parties an oral ruling at a specific date within a few weeks
of trial concluding, or draft final orders for the parties and present
the decision as completed final orders. Generally, the prevailing party
drafts the final orders from the oral ruling.
Preparation is the key to trial success. Take the time to meet with your
attorney as often as he or she needs to meet, as you have only one opportunity
to put on your case. Do not be timid in asking questions of your counsel
as you prepare for, and proceed through, trial. With an understanding
of the trial process, and proper preparation, your likelihood of success
For some tips on how to behave in court, check out What to Expect in Divorce Court.