Trial
Contents
A divorce is set for trial when the spouses are unable to come to an agreement on an issue. The parties can request a bench trial or a jury trial. A bench trial is one that is held before a judge only; no jury is present.
When the trial is completed, the judge or jury makes a final determination on the issues in dispute, and the court enters a final decree of divorce.
A divorce trial proceeds like any other trial: a jury is picked if it is a jury trial, lawyers make opening statements, witnesses testify, evidence is presented to the court, closing statements are made and a final ruling is announced by the court.
What issues are decided at trial?
The judge determines:
- whether the parties are entitled, i.e., met the legal requirements, to a divorce;
- to whom the divorce is awarded;
- the custody and visitation of minor children;
- the identification of separate property;
- the value of marital property;
- an equitable division of marital property;
- an award of child support;
- an award of spousal support (amount and duration); and
- an award of attorney's fees.
Do I have to testify at my divorce trial?
Yes. If you want the judge or jury to hear your side of the story, you must testify. Additionally, if your spouse does not appear at trial, you must testify to "prove up" or recite the relevant facts in order to obtain a final divorce decree.
What questions will I be asked on the witness stand?
You will be asked to give:
- your name and address;
- the date of your marriage;
- the names and ages of your children; and
- the facts supporting or grounds for a divorce.
Once the trial has begun, is it too late for my spouse and me to come to an agreement?
No, cases are routinely settled during the trial. Since you are already before the judge, your attorneys will read the agreement to the court and each of you will testify that you have consented to settle the case.
Appeal
Once a final divorce decree is entered after the trial, either party can appeal the ruling. The first appeal is to the trial court in the form of a motion for new trial (generally not granted). The party then files an appeal with the appellate court. In an appeal, one of the parties is asking the appellate court to overrule or reverse the rulings of the trial court judge. The appeal can be confined to one issue or cover several different matters the party believes were incorrectly determined.
Appeals have extraordinarily short deadlines. The timeline in an appeal consists of many different deadlines that must be met. The failure to meet any of these deadlines means that the appeal is waived. Because they are so complicated, appeals are usually handled by appellate lawyers - lawyers who specialize in this field.
TIP: Once a final divorce decree is entered, it cannot be modified unless the trial court orders a new trial or an appeals court reverses the trial court's order.