While the majority of divorces settle before trial, some of them do end up going to trial. If some of the issues have been settled, but some have not, then only the issues that the parties still have to work out will go to trial. For example, if you have reached an agreement about asset division, but cannot agree on child custody, only the custody issue will be tried. While judges are educated and experienced in these matters, it is impossible for them to have as much information on the issue as the people directly involved in the situation. That is why divorce attorneys generally try to get their clients to come to an agreement if at all possible.
A trial gives both parties the opportunity to present evidence and have their side heard in court. If the case does not settle before then, the judge will issue a ruling about the still contested issues. The parties are then required to abide by the judge’s ruling, though they may seek an appeal.
Before Going to Trial
A large part of trial, and the legal fees that are paid when a divorce goes to trial, is the preparation needed to go to trial. Before the trial begins, you and your attorney will have to work to gather evidence to help prove your side in court. For example, you and your spouse may both have to be deposed, which means that you are asked questions and the answers are recorded. Your attorney will also work with you to collect documents such as bank statements, mortgage bills, business records, emails, and anything else that is relevant to the issues you are arguing. You may need to find and hire experts, and if there are children of the marriage they may need to be interviewed in some cases. The evidence gathering process will greatly depend on the issues still left to litigate.
Even when the parties are preparing for trial, it is common for the case to settle right before the trial starts. During the evidence gathering process – called “discovery” – either or both of the attorneys may get an idea of the likely outcome. Thus they may recommend settling if they think that the other side’s settlement offer is better than what the judge is likely to find.
In almost all states and under almost all circumstances, divorce cases will be heard by a judge and not a jury. However, in many other ways the trial will look somewhat similar to what you have seen on TV. Both parties will usually have an opportunity to testify, present evidence, and call witnesses and/or experts to testify. At the end of the trial, and once everyone has fully presented their case, the judge will take the matter under advisement. At some point in the future the judge will issue a final ruling that addresses the matters that are still in dispute.
If a party is unsatisfied with the judge’s ruling, they can appeal all or part of the decision. Appeals are usually done through written arguments prepared by your attorney. They will argue that the trial court judge did not follow the law in reaching their decision. However, appeals in a divorce case are rarely successful because the trial judge has a lot of discretion when they make their ruling. Much more common – and more likely to be successful – are modifications.
Unlike an appeal, modifications are not arguing that the judge made a mistake. Rather, modifications are saying that since the trial circumstances have changed, and so the agreement should be modified in light of those changes. However, states will require some kind of material change in circumstances in order to even hear the case generally. For example, if one party is supposed to pay $5,000 a month in child support but then loses their job through no fault of their own, they may ask for a modification to temporarily or permanently lower the amount of child support they are supposed to pay. States and courts may look at what constitutes a “material” change differently, however. Your divorce attorney can help you understand what a “material change” looks like in your jurisdiction.