Step 12 – Trial
If the parties to a divorce action cannot reach an agreement on all the necessary and relevant issues by agreement—remembering every divorce and what matters can be different—the local District Court and assigned Judge will determine the remaining issues in dispute at trial. Most individuals associate court trials with those they see on T.V. or read about in a novel. Unlike most of the trials, however, divorce trial is not tried to juries. Instead, the District Court Judge assigned to the case when filed will act both as the legal authority and the trier of fact for each divorce trial. This means that the judge will make legal rulings as well as consider the factual evidence presented by each party. Although each divorce trial can differ for a variety of reasons, most will typically some procedural outline such as that recited below.
If requested by either party, a trial will begin with statements by each attorney (or self-represented party when applicable). The filing spouse’s attorney, the attorney for the “Petitioner,” will begin Followed then by the non-filing spouse’s attorney, or the “Respondent.” The openings will set the stage for the judge, letting him or her know what the issues are, and what the sides are broadly asking for in terms of property division, support awards, and child custody. Unlike opening statements in some other cases, the need to fully educate the judge on all that has occurred both prior to and during litigation is not present. As the judge hearing the final trial will almost always be the same judge who has been presiding over this matter since its filing. As such, and due to all that will have transpired procedurally by a time either spouse gets to final trial, the trial judge is already aware of most of the big issues in dispute, and what the parties have been asking for up to that point is traditionally what a party is asking for a trial as well. As such, experienced counsel will use their opening statement to narrow the focus of the judge on key issues, and begin to show the judge why those issues should produce the result sought.
The Petitioner’s, Or Filing Party’s Evidence
The filing party in a divorce is formally known as the “Petitioner.” In accordance with civil procedure, it is the Petitioner’s attorney who will first be provided an opportunity to present their “case-in-chief,” or the entirety of their proposal on how the Court should rule on all outstanding issues in the divorce. Although there is no set requirement, most attorneys’ do this by calling witnesses and presenting other evidence in the form of exhibits for the court to consider. During this process witnesses, including the spouses, will be called one-by-one to the witness stand. After taking an oath, a party’s attorney will begin by questioning the witness directly. This is appropriately referred to as “direct examination.” The goal of direct is to elicit testimony from the witness about the issues in the case, and hopefully do so in a way that is beneficial to an attorney’s case. To accomplish this, the attorney will traditionally give friendly witness—those who are there to help their case—short, succinct jumping off points. Normally, during direct examinations such as this, leading questions that suggest answers are not permitted. To enforce this and other rules of evidence, the opposing attorney can object to questions or testimony during direct examination. When an objection is made, the judge will hear both sides arguments regarding the objection, and then issue a ruling allowing the challenged evidence or prohibiting it.
During direct examination, the attorney will also traditionally submit exhibits, through their witnesses, as evidence. Exhibits can essentially be any tangible piece of evidence, such as documents, photographs, video recordings, or other items. To be admitted formally, and thereby appropriately considered as evidence, each exhibit will require a proper foundation. This simply means that some testimony or other facts support the exhibit as being what the attorney claims it is. Most foundation is laid by having a witness familiar with the document testified as to what it was. For example, a witness that took a photograph can testify about what it depicts. Alternatively, a witness familiar with what the photograph depicts could also testify that the photograph is accurate to lay the foundation for its admission.
After the Petitioner’s attorney has completed their direct examination of any witness, the opposing attorney will be allowed to ask follow-up questions; or present “cross examination.” The goal of this cross examination is two-fold: dive further into the information the witness testified about, and hopefully where possible, show that the witness lacks credibility for some reason or another on any damaging point that may have been testified to. To accomplish these tasks, the attorney is permitted to ask short, pointed, and even leading questions. Generally, the witness will simply be answering “yes” or “no” throughout the entire examination as the attorney puts much of the substance into the testimony via his or her questions. As in most trials, credibility of all witnesses is important, and the judge will take note of red flags against a witness’s credibility, such as bias towards a party or interest in certain outcome, when prudent.
After cross examination, the Petitioner’s attorney will have an opportunity to clarify any needed points on redirect. The last round of questioning for any witness however should fall to the opposing attorney, as he or she should always have a second opportunity to ask additional questions on recross examination to ensure a clear record. The witness will then leave the stand and the filing party may call more witnesses. This continues until the filing party, or the Petitioner, has no additional witnesses to call. At that point, the filing party’s case has been fully presented.
The Respondent’s, Or Non-Filing Party’s Evidence
Not surprisingly, once the Petitioner is done submitting their case-in-chief, the Respondent’s attorney will then have his or her opportunity to present their evidence to the Judge. This process is often times identical to the process the Petitioner’s attorney would utilize (see above), except the roles are reversed. The non-filing party’s attorney conducts direct examination of their friendly or supporting witnesses, followed by the filing party’s attorney conducting cross-examination. Redirect and recross follow and exhibits can be admitted as well. Once the non-filing party has called all witnesses and admitted all exhibits, it too will rest on the evidence presented.
Once the non-filing party has rested its case, and both sides have thus finished presenting all relevant and necessary evidence, each side will have the opportunity to make a closing argument directly to the judge. The filing-party’s attorney will go first, and may reserve some of the allotted time for a rebuttal closing if they opt to. Closing is an opportunity for the attorney to remind the judge what evidence he or she has heard, and more importantly remind the judge why that evidence should lead the result requested in terms of property division, support obligations, and/or child custody. The non-filing party will then have the same opportunity with largely the same goal. The attorney may also argue why the evidence does not support the opposition’s result. Finally, the non-filing attorney may take rebuttal to have the last word before the judge makes his or her decision.
Announcement Of The Decision And Terms Of The Divorce Decree
Depending on the length of the trial, the amount of exhibits and evidence presented, and the number of issues the Judge is being called on to decide, a judge may or may not make a decision the same day the judge hears all the evidence.
If the judge does have time to make a decision the same day, the judge will usually take a short recess to collect and gather his or her notes and findings, and then return and make a formal decision on the record. This recess allows the judge time to consider all the evidence in arriving at the terms of the divorce decree.
At other times, the judge may announce that he or she needs more time to review all the evidence presented, and in this instance, the judge will still put the trial in recess, it will just be for a prolonged period of time until another date and time certain. If the court does this, it will at least ensure the parties leave the courthouse the last day of trial knowing the timeframe for which the judge will need to make his or her decision. This is most often accomplished by the judge setting a Ruling Hearing date then and there.
Whether ruling immediately or after a prolonged recess, after recess, the court will reconvene the parties and their attorneys and the judge will announce the terms of divorce. The first decision will be that of actually dissolving the marriage. The judge will also recite any necessary procedural, venue, or jurisdictional findings to ensure the Decree can be upheld once entered. From there, the judge will traditionally move on to outlining how property is to be divided. The judge will also need to state reasons for arriving at this division to provide support in the record for the judge’s decision. The same process is repeated for support obligations, and then the court usually ends by addressing any child custody issues. Most judges wait to address custody issues last, if they were contested, as the judge will typically take some time at the end to remind the parties that regardless of the decision rendered in this regard, both parties are still parents of their children, and as such those children will still need both parents. Once done issuing his or her decision, the judge will excuse the parties, and traditionally direct one parties’ attorney, or both, to prepare the judge’s ruling and decree and reduce the same to paper.
For further information regarding the divorce process, please see the below link.
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