Many divorces settle before trial, but some divorcing spouses may not be able to come to an agreement and must rely on the trial process. Parties are also free to settle some issues before trial and use the trial process only for the unresolved issues. Once those issues are argued during trial, and the judge issues a ruling, the parties must abide by that decision with limited opportunities to modify or appeal the order.
The pretrial conference is a hearing in front of the judge with both parties and their attorneys. The main goal of a pretrial conference is to schedule the dates of the trial and any events leading up to the trial, such as a pretrial settlement conference. Other dates may include deadlines to disclose or object to evidence or testimony. Both parties will inform the judge of their general arguments, the evidence and witnesses that they may introduce, and how long they will need to present their side of the case.
A pretrial conference may also be an opportunity for the judge to decide certain issues affecting how each side’s case will be presented. Sometimes, a party will want to introduce evidence that the other side believes is unfair or irrelevant. The judge may use the pretrial conference to hear each side’s arguments or ask for written arguments on the issue to be decided before trial. The judge will also decide any smaller issues with presenting evidence, such as how exhibits will be labeled. Parties may be asked to prepare trial briefs that put forth the arguments that they intend to make at trial in written form.
2. The Settlement Conference
The final settlement conference is not the last opportunity to settle the case — negotiations may continue well afterwards.
The court will likely mandate that the parties engage in a settlement conference sometime before trial. Settlement conferences are an opportunity for both parties and their lawyers to meet and discuss the possibility of settling the case entirely or at least narrowing the issues for trial. The parties will likely discuss the history of previous settlement negotiations and sticking points. They may propose a new settlement arrangement or continue to offer a previous arrangement while trying to persuade the other side of its benefits. Usually, a settlement conference judge or a mediator will be present to help the parties resolve their disputes. Parties are not required to reach any agreement during a settlement conference.
3. Opening Statements
All trials begin with opening statements by each side. While opening statements are sometimes directed to a jury, most states do not offer jury trials for divorce cases. Instead, the judge will assume the fact-finding role of the jury. An opening statement sets out the issues in the case, a summary of the facts and evidence, and how the presenting party would like the judge to rule. Opening statements generally may not contain any arguments. Arguments are reserved for each party’s case-in-chief. Usually, the petitioner will present their opening statement first, followed by the respondent.
4. The Petitioner’s Case
In most cases, the petitioner (the spouse who filed for divorce) will present their case-in-chief first. A party’s case-in-chief is the main event of the trial. They will argue their position, present evidence, and question witnesses. Evidence may include documents, records, or illustrative tools, like charts and graphs. Witnesses may include the petitioner, their friends and family members, and experts who will testify about issues within their specialized knowledge.
The process of questioning witnesses is called “direct” examination when witnesses for the petitioner are questioned by the petitioner or their attorney. The respondent or their attorney will then have a chance to question the petitioner’s witness in a process called “cross-examination.” Cross-examination is limited to information about which the witness testified during direct examination, so the purpose of cross-examination is generally to question the witness’ credibility. For example, a respondent’s lawyer may cross-examine a family member who testified about the value of the couple’s home by asking whether or not that family member is an expert in real estate. The petitioner will then have another chance to question the witness during “redirect.” Again, redirect is limited to the information about which the witness has already testified.
Preparing for Cross-Examination
A spouse who chooses to testify in their own divorce case will surely be cross-examined by the other spouse’s lawyer. It may be prudent to prepare for cross-examination ahead of time, although it is impossible to prepare for every conceivable question. The best strategy is always to take one’s time answering, stay calm, and tell the truth.
Sometimes, the petitioner’s lawyer will question a witness about the evidence, especially if the witness prepared the evidence or has an expertise that would help the judge understand the evidence. For example, an accountant may testify about a business’ bank statements and explain how the statements support the petitioner’s argument that the parties were putting marital funds into the business.
5. The Respondent’s Case
The respondent (the spouse who responded to the other spouse’s divorce filing) will have the same opportunity as the petitioner to present their case-in-chief. Their presentation will likely include arguments and evidence opposed to the petitioner’s desired outcome and may even introduce new evidence in support of the respondent’s position. The respondent will likely also question their own witnesses, and the petitioner will have an equal chance to cross-examine those witnesses.
6. The Rebuttal and Surrebuttal
Both the petitioner and the respondent will have a chance to address the opposing side’s arguments once more in the rebuttal (for the petitioner) and surrebuttal (for the respondent). The structure of the rebuttal and surrebuttal is similar to the structure of cross-examination and redirect. During the petitioner’s rebuttal, the petitioner may put on witnesses to rebut what the respondent’s witnesses said. Again, topics are limited to only those that have already been introduced by the respondent’s witnesses. At the judge’s discretion, the respondent may then have an opportunity to put on witnesses to respond to rebuttal witness testimony during a surrebuttal.
7. Guardians ad Litem
If a guardian ad litem has been appointed, they will present their own testimony for the judge’s consideration. A guardian ad litem is an individual (often a lawyer) appointed by a judge to represent the interests of the children. The guardian ad litem will testify about issues concerning the children, usually related to child custody and visitation. Their testimony may include general evaluations of the children and the divorcing couple’s relationship with the children, but it may also include other evidence such as a child’s report card or mental health evaluation. They will usually conclude with a recommendation to the court about what is in the children’s best interests.
8. Closing Arguments
Much like opening statements, closing arguments give each side a chance to summarize their case. Unlike opening statements, closing arguments may contain just that — argument. Each side will likely review their case, how their evidence supports their case, and the weaknesses of the other side’s evidence and arguments.
9. The Ruling and Final Divorce Order
In the likely event that a judge, rather than a jury, has served as the fact-finder for the case, the final ruling may not be issued immediately. A judge is likely to dismiss the parties after closing arguments and provide a date or general idea of when they can expect a decision. The judge may also ask for another brief from each side summarizing the trial arguments and evidence. The parties may then have some time to wait before the judge issues their final ruling and signs the final divorce order.
The final divorce order is the definitive document that decides the outcome of the case and both parties’ rights and responsibilities after the divorce. Usually, it is drafted by one of the parties after the judge issues their final ruling. The draft final divorce order will combine the judge’s rulings with anything to which the parties have previously agreed. For example, if the parties settled their child custody dispute but used the trial process to determine their property division, the draft final divorce order would incorporate both the judge’s ruling on the division of property and the parties’ agreement regarding child custody. The other side will have a chance to review it and propose changes before the parties submit the order to the judge for their review and signature. Once the final divorce order is signed by the judge, the divorce will be final, and any agreements within the order will have the force of law.