Family Law: Pre-trial--#2 of the top 3 hearings you're likely to attend in a divorce

By Marie E. Matyjaszek

A pre-trial is the step before your divorce trial, and in most cases, I think clients will find the hearing itself to be pretty anticlimactic, especially when compared to drama-laden courthouse scenes from TV. Thankfully, most pre-trials are not set as early as Conciliation, and depending on the judge assigned to your case, you may or may not be required to attend.

Pre-trials are useful to keep the case on track and provide an update to the judge as to how the case is coming along - are you likely to settle, need to go to trial, explore mediation possibilities, etc. Most judges are open to discussing particulars with the parties' attorneys in chambers at the pre-trial - your attorney can run an issue by the judge, briefly present his side while your soon-to-be ex's counsel presents his position, and the judge will often give an indication of how he or she may rule if the issue were to go to trial. This saves an enormous amount of time and money as the attorneys can take this "draft ruling" back to the clients and suggest that they settle or negotiate towards how the judge was leaning.

In many cases, witness and/or exhibit lists are exchanged before or at the pre-trial. The witness list contains the names of potential people you'd call to support your side of the story if you were to go to trial. This typically includes both parties, relatives, friends, the children, records keepers and experts to round it out. By providing these documents to the opposing party, you get a sneak-peek of what the other side's game plan is. There are many times when I receive a witness list and don't know who some of the people on the list are. Once I ask my client, I routinely receive the response of "I can't believe he's calling her as a witness! I know what he's up to!" or "Oh no, how did he find out about him???" (You'd be surprised how many times attorneys don't know what people are up to. It's probably because people are less than forthcoming about the truth, the whole truth, and nothing but the truth, so help me God kind of stuff.)

Exhibit lists typically contain the documents that the parties want to present to the court to support their side and explain and/or value the property involved in the marital estate. Most of the time the exhibits that are going to be used have already been exchanged between the parties during the discovery period of the divorce, so there are less surprises on the list.

If the parties and their attorneys are available to stick around after the pre-trial, negotiations can occur and if an agreement is reached as to all issues, the agreement can be placed on the record in court and the parties are then bound by those terms. This agreement is drafted into the final Judgment of Divorce and the parties avoid going to trial, saving everyone time and money.

So, in summary, don't be afraid of the pre-trial despite the fact that it has the nasty word "trial" in it. It's a lot more work for your attorney than you, and many times the parties make significant headway towards settling the matter, which benefits everyone. You probably won't even have to set your alarm as early as you would for Conciliation. Nothing should really occur before 10 am anyways.

Published: Mon, Sep 19, 2011