Trials & Tribulations

Despite all efforts to avoid a trial, including your attorney telling you a gazillion times how expensive it's going to be and how bad it's going to be, you have not settled your case and you are now going to trial. Buckle up, you're in for the most expensive ride of your life.

Months of preparation and information gathering have lead you to this place. It's possible you won't have to try your entire case, often some issues are settled and only the unsettled issues are tried. If this is the case, all the settled issues will be stipulated to first and put on the record. Then the real trial begins. If there are no settled issues, (extremely rare and usually indicates that at least one person involved, if not more, and including the lawyers, is a royal pain in the ass), then you will be forced to try your entire case.

Your lawyer will prepare you for trial. Every lawyer does this differently. I like to go over the questions I will be asking my clients and get them familiar with the exhibits/evidence I will be presenting and asking them about. Some lawyers actually do mini-trials to prepare their clients. I will not tell you what to say as I feel that your credibility will be compromised. I ask my clients to answer honestly.

For informational purposes I will outline a trial in which everything is at issue (being tried). In New Jersey all divorce trials are "bench" trials, which means the Judge hears the case, there are no juries. Keep this in mind as it makes a divorce trial very different from what you may see on TV. Judges do not want to see the theatrics, they want to hear the facts and the law, period. Now for the trial. There may or may not be opening arguments. Unless the case is very complex I skip the opening argument. Usually opening arguments are just a waste of time, the Judge just doesn't need them.

The plaintiff goes first. The first topic will be the grounds for divorce. Then your lawyer will proceed with questioning concerning all the different issues. There will be some type of organization of the issues in your trial. Some of the organization may have to do with the availability of experts and witnesses. Some may have to do with the importance of the issues. Your attorney will decide how to proceed. In general, the organization starts with the major issues and hones down to specifics. For example, I may start with equitable distribution, the specifics may include real estate, vehicles, pensions, investments, etc. Then I may go to issues dealing with children, the specifics may include custody, visitation, support, etc.

For every "specific", all the evidence and testimony has to be organized. Most lawyers will prepare a trial notebook which lays it all out and which they will follow in order to try your case. Your lawyer must present certain elements to the Court. Let's use the marital home as an example. You and your spouse are fighting over it. The elements to be presented will include at a minimum, when the home was acquired, for how much, how much is it worth now, what have each of the parties contributed toward the home both financial and otherwise (blood sweat and tears stuff), has anyone else contributed to the home. Each of these elements will have to be proven either by testimony, evidence or an expert. Testimony alone can prove when the house was bought. Documents, such as bank statements and cancelled checks, may be needed to prove contributions toward the home. An expert and their appraisal will be needed to prove the current value. Your word alone will not cut it, judges want proof.

The opposing attorney gets to cross-examine every witness. The purpose of cross-examination is to elicit more information or shoot holes in testimony. This is why I encourage my clients to be honest and open, there's no recovering from hiding something or being caught in a lie.

Once the plaintiff finishes their case, the defendant puts on their case. Procedure is the same.

Then you may or may not have closing arguments. At any time during the trial you can settle your case and end the torture.

Divorce trials can take anywhere from a couple of hours to days. Once your trial is over, it may be weeks before you get a decision from the Judge. 99.99% of the time, no one will like the judge's decision but at least now you're divorced.