The Trial

The Trial (Part 1)

The final major event in the divorce process is the trial. Although fewer than 5% of all divorces go to trial, this statistic, like many such numbers, is misleading. If only the divorces of middle and upper class clients with children were included, the percentage would at least double. If the sample were limited further to include only cases where the mom is a homemaker and the marriage lasted in excess of 10 years, the percentage of cases that reach trial would probably double again. The length and complexity of your trial will depend on the time the court allocates and the number and complexity of issues to be decided. Your trial may last anywhere from a few hours to a few days, and–in rare cases–a few weeks.

Custody Litigation: certain issues are notoriously litigious in divorces, even where both parties are being reasonable. While money inspires a lot of conflict, no issue is more fertile for litigation than custody of the children. A dispute over child custody is prone to be tried because the criteria for awarding custody are vague and subjective. In essence, if you succeed at persuading the judge that you will be a better parent, you will have custody. The parties may also have a genuine disagreement about what type of custody arrangement is in the child’s best interest. Most often, a custody battle involves a dad competing with his ex-wife for additional time with his child. Women often fight these battles without regard for the probability of success. My impressionistic theory is that moms fear family and friends will stigmatize them for having “lost custody” of their kids. Men, unburdened by such cultural baggage, are rarely motivated by what others may think.

Financial Matters: remember that the trial will likely cover more than child custody and support. A large part of your trial may be consumed by evidence relating to maintenance and/or property division. The evidence normally includes various financial documents, coupled with detailed testimony regarding both parties’ statements of income and expenses, assets and liabilities, and testimony of various experts.

Court Time: some jurisdictions significantly restrict time permitted for trial. Additionally, individual judges may apply their own limitations. On several occasions, judges have limited me to only a half-day (4 hours) to present my client’s case. While such heavy-handed tactics are of dubious legality, the sensible approach is to not anger the judge.

The trial is your opportunity to present your best evidence to the judge in the most persuasive way possible. Therefore, given time limitations, an effective advocate will usually select only the most favorable evidence to present a vivid and comprehensible picture. Your evidence may consist of testimony by various witnesses, tangible objects (e.g. a gun), various documents (e.g. school and health records), and visual aids.

During the trial itself, you and your attorney will be seated together (usually at your own table), as will your wife and her attorney. While clients envision a courtroom full of onlookers, most divorces do not command much public interest. Often, apart from the parties and their attorneys, only the judge, a court reporter, and a bailiff are present. Witnesses may or may not be present. Some states may require closed hearings under certain circumstances, especially where minors are involved. Also, either party may: make a motion to the court to exclude witnesses from the court room altogether.

This online custody guide is adapted with permission from “Civil War: A Dad’s Guide to Custody” (266 pages, softcover) – available in our online store.