By Marie E. Matyjaszek
The divorce trial is your swan song – the final culmination of what you’ve been fighting for all these months. Despite valiant efforts, you can’t reach a total agreement with your spouse – maybe you’ve agreed on some but not all of the issues, or perhaps everything is up for grabs.
Most divorce attorneys will recommend that you settle your case if you can – regardless of the judge’s reputation and skill, the truth is the judge barely knows you and will most likely only listen to your arguments for a few hours. In my opinion and experience, the majority of divorce cases settle (I’ve heard a statistic that as high as 97% of divorce cases resolve without a trial). Do whatever you can to minimize the outstanding disputes in your divorce, as this will lessen the number of issues the judge has to resolve as well as reduce your attorney fees and court costs. If you can settle some or all of the property issues – who gets the house and cars, how the financial assets (bank accounts, retirement, non-retirement investment accounts, etc.) are going to be divided – you can put an agreement on the record as to those specific items and go to trial over the rest. In doing so, you’re left with a smaller portion of your estate to wage battle over.
Custody, parenting time and child support are the most common deal breakers in a divorce case, and rightfully so – the time you spend with your children is priceless and it should be the paramount issue in your matter. Stay tuned for future articles that will discuss the “Best Interest Factors” that the court has to consider when making a custody ruling.
During the trial, you get to call the witnesses that you listed on your previously filed witness list, and your spouse is able to do the same with his. Both attorneys can cross-examine the other spouse’s witnesses, mitigating any damage that person created, or call a rebuttal witness to challenge what an earlier witness testified to. The parties themselves are the most important of those called, and hopefully your testimony as well as those of your supporting witnesses will make your argument favorable to the judge.
It’s important to listen to all of your attorney’s prep tips for your testimony – wear appropriate clothing (courtroom appropriate, not Saturday night bar hopping appropriate), answer questions honestly and concisely, and don’t be afraid to say you don’t know the answer to a question or that you can’t remember the answer. If you don’t understand the question, then ask for it to be rephrased in a way so you can better know what is being asked of you. Control your emotions and behavior as much as possible – no eye rolling or snarky remarks. No matter what the facts, you certainly do not want the judge to see you as an “unlikeable” person with a vendetta against your spouse.
Exhibits are used to buttress your argument or perhaps impeach something your spouse testified to (although I’m sure he legitimately forgot that he withdrew $20,000 in marital funds the day before he filed for divorce). The attorneys make closing arguments to solidify your position and then…you wait.
Don’t expect the judge to make a same-day decision, although sometimes that does happen. It’s more likely that the judge will take it under advisement where you will wait a couple of weeks before he calls the attorneys to a hearing to issue his ruling, and some judges submit a written opinion that is shipped out to both attorneys after the trial. You can appeal a judge’s ruling, but most parties don’t have the resources or time to do so and stick with what the judge decided, even if they do not believe they came out on top.
You’re never going to be completely happy with the outcome of your divorce, but the more control you maintain over it the more likely you’re going to be able to live with the final decision. Settle what you can, take the rest to trial and listen to your attorney’s advice for what to do – and save the debut of the little black dress that screams “I’M SINGLE!” for after court.
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