WHAT SHOULD I EXPECT IF MY DIVORCE OR CUSTODY CASE GOES TO TRIAL?

DIVORCE AND FAMILY LAW TRIALS

Most people find the thought of a trial in a divorce or family law proceeding to be extremely intimidating. If a client reaches this point, it means the parties could not settle matters on their own, through counsel, or mediation which is required in most family law proceedings.

Most people have never experienced a courtroom setting, much less a trial. Many people assume the process is similar to what they see on television. It is not. Most family law trials lack drama and are methodical presentations of your case. An understanding of what to expect if you have to go to trial in a divorce or custody matter can greatly reduce the stress and anxiety associated with the proceeding. The following is a general outline of what to expect should your case proceed to trial.

BRING THE CASE TO TRIAL

The amount of time it takes to get a case to trial depends on the jurisdiction in which the case is heard. Prior to trial, specific deadlines and formalities must be met before a case can be brought to trial. This includes completing the discovery process and obtaining the documentation necessary to present the case.

Discovery is a fact finding process in which each side has the opportunity to gather information about the other party’s finances, debts and the like. Discovery must be completed in a timely fashion before a trial commences. There are mandatory requirements as to the manner in which the discovery can be requested, the timing of the requests and what needs to be produced. The court will determine any disagreements between the parties as to the nature and extent of discovery.

In addition to discovery, the parties are entitled to call witnesses to testify as to factual matters in their case. Generally, though not required in all courts, the parties disclose the witnesses they intend to call at the trial. The number and type of witnesses will depend on the nature and complexity of your particular case. In cases involving businesses or real property, it may be necessary to call experts to testify as to the value of the property. In child custody cases, it is common to have a custody and parenting time study completed in contested cases and to have the custody evaluator testify as to their findings at trial.

In custody or parenting time cases, courts will require the parties to attempt to resolve the matter by mediation before allowing a hearing on the merits.

DIVORCE AND FAMILY LAW TRIALS ARE HEARD BY THE COURT

A common myth among the community is that family law cases are decided by a jury. They are not. All family law cases are heard by a trial judge. The family law trial judge alone oversees the trial proceedings and the presentation of evidence. The trial judge will resolve all matters pertaining to the case and will then render a decision, either on the bench or in a separate memorandum. In cases where the matter has been heard by a judge for more than an hour, that judge will generally reserve all future rulings on the case. This practice is not uniform and varies from county to county. Thus, the presentation and appearance before the trial judge in a family law proceeding is of the utmost importance.

The length of your trial will depend on the number and complexities of the issues to be decided by the court. Generally, the length of trial is determined by either a trial setting conference or during trial assignment depending on the jurisdiction. The court will require the parties to give an estimate as to the amount of time necessary for the trial and will then set the matter for trial, depending on the amount of time necessary to hear the case. The longer the trial – the longer the wait. Exceptionally complex cases may be tried in parts over several days and even months. Such trials are usually assigned to a single judge to coordinate the trial and bring the matter to conclusion.

THE PETITIONER

The party who filed the divorce or family law proceeding presents his or her case first, This means that the Petitioner or the moving party will start the trial.

Respondent or the party responding to the proceeding is then allowed to present their case. The moving party then may present rebuttal evidence. Each party is generally given great latitude in presenting their entire case and all evidence which they intend to present at trial. However, the failure to properly follow trial procedures or the discovery process can have an adverse effect on a party’s ability to present evidence at trial.

HOW DIVORCE AND FAMILY LAW TRIALS WORK

Once a case is assigned a trial date, the parties should arrive at the courtroom for the judge assigned to hear the case early. The court will generally wish to speak to the attorneys to resolve any legal issues prior to the trial or to see if the matter can be settled.

Once the trial has begun, each party will be allowed to present an opening statement. An opening statement is a road map that a party can present outlining what the court will hear and how the court should rule on the evidence. It is important to remember an opening statement is not evidence. Opening statements are used to provide the court a snapshot of the evidence to be presented and your trial position.

Depending on the complexity of your case, each party will already have provided the court with their respective trial memorandums, evidence notebooks, and proposed distribution of assets and liabilities, proposed parenting plans and final orders. These materials are used to provide the judge with a basic understanding of each party’s trial position and the reasons underlying their position.

WITNESSES AT FAMILY LAW TRIALS

In a divorce or family law proceeding, the two most important witnesses are the parties themselves. Each party will be allowed an opportunity to present their case and to provide evidence to the court which supports their position. Presentation and preparation is crucial to your success at trial. It is essential to be honest with your attorney as to the facts and circumstances of your case. Full and honest disclosure avoids surprises and negative outlines.

The judge will listen carefully to the direct and cross examination of each witness at trial to determine the essential facts of the case and to assess credibility. It is important for parties to understand that the manner in which they provide testimony is as important as the substance of the testimony. A witness should address their testimony to the judge and answer any questions the court may have. A skilled trial lawyer will make the presentation of your testimony easy and can guide you through the process.

A witness should anticipate answering not only the direct examination from their attorney but also the cross examination from opposing counsel. Again, the assistance of a skilled trial lawyer is essential to preparing your testimony for trial.

THE COURTROOM

Divorce and family law trials are heard in Circuit Courts in the State of Oregon and in Superior Courts in the states of Washington and California. The cases are assigned to trial judges and will occur in the trial judge’s courtroom at the courthouse. Generally, the judge will sit at the head of the room at the judge’s bench and counsel and the parties will sit at tables directly in front of the judge’s bench. Witnesses are generally called to a witness box on the side of the judge’s bench.

Courtrooms are generally open to the public but family law trials are rarely attended. It is common for the parties to have the entire courtroom to themselves with the judge. A court will usually ask any witnesses to sit outside of the courtroom prior to giving testimony. Matters of discretion will generally be addressed in the judge’s chambers outside of any public audience. Depending on the nature of your proceeding, the judge may have several matters pending on his docket and a full courtroom. In such cases, you will have to wait in the courtroom until the judge calls your case.

THE JUDGE

All divorce and family law trials are heard by a Circuit Court Judge in the State of Oregon and by Superior Court Judges in the states of Washington or California. The level of judge interaction will depend on the specific judge assigned to your case. Some judges require a great deal of interaction with the parties and attorneys. Others will quietly take notes and only interrupt as necessary. Other judges will actively question witnesses with regards to any issues they are to determine.

It is important to speak directly to the judge when addressing the court and to answer the question as directly as possible. Judges tend to be very busy and do not want long narratives on issues which have no bearing on what is to be decided by the court. Not answering a question directly can have an adverse effect on your case and destroy your credibility with the judge.

CLOSING ARGUMENTS

After each party has provided all of the evidence they intend to offer at trial, the court will allow each party an opportunity to provide a closing argument. Closing arguments are made by the attorneys in the case and summarize the evidence and rulings which each party is required to make. Again, closing arguments are not evidence. A closing argument should focus on the evidence presented and determinations the party wishes the court to make.

DECISIONS BY THE COURT

Once the presentation of evidence and arguments have concluded, the court will render a decision. Again, the manner in which the decision is rendered will depend on the specific judge assigned to the case. Some judges will make rulings directly from the bench at the trial on the record. The most common manner, however, is for the judge to take the matter “under advisement” and to render a formal decision at a later date once the judge has reviewed all the pertinent testimony, evidence and rulings in the case. The decision is then given to the attorneys by letter memorandum and the attorneys are requesting to prepare a formal judgment to be entered with the court. Generally, the prevailing party will be requested to draft the proposed final orders for filing and entry by the court.

Experience and preparation are the keys to success at trial. It is essential that you provide your attorney with all the information he has requested of you and that you take the time to provide your attorney with all the information he needs to adequately present your case. You should not be timid in asking questions of your attorney to adequately prepare you for trial. Nonetheless, a skilled divorce or family law trial lawyer will guide you through this process and obtain the best possible outcome on your case. By understanding what to expect during a divorce or family law trial, you can greatly improve the likelihood of success in your case.

CONTACT PAUL F. SHERMAN FOR EXPERT ADVISE ON YOUR DIVORCE TRIAL

We know you have more questions and we have the answers. If you would like to learn more about divorce, child custody or any family law matter, call the Law Offices of Paul F. Sherman at (503) 223-8441 for legal advice, or Contact Us for a free consultation.

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LAW OFFICES OF PAUL F. SHERMAN
This entry was posted in Custody, Divorce, Family law, Uncategorized. Bookmark the permalink.

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