One of the most asked questions regarding divorce is whether or not you have the right to a trial by jury. In divorce matters, there is no right to a trial by jury - a Judge will make all decisions in your case.
However, if you ask any attorney how many divorce matters actually go to trial, you will likely receive the response: 1 to 5%. A trial over custody, support and assets is an aberration as most parties, whether it be shortly after commencing a divorce case, or on the morning of the first day of trial, choose to settle their matter rather than leave it in the hands of a Judge. No person typically wants one person, the Judge, deciding their futures when it comes to their children and their money. This is a rational choice. However, settling a divorce case is not always possible, such as when the parties are so far apart on their settlement proposals that no meaningful negotiations can take place and only judicial experience can resolve the issues, or where one or both parties insist on their “day in Court” and will not be satisfied until they can take the witness stand to air their side of the story. Most good attorneys will attempt to dissuade their clients from taking this course of action as any feeling of “vindication” for finally telling “your side of the story” can be short-lived if the Judge makes a decision you are unhappy with.
Unless the parties are working from a large budget, most parties anticipate the expense of going to trial and factor that into settlement negotiations. Many people ask why trial is so expensive. To answer that, I will briefly summarize what attorneys must do to prepare for a divorce trial:
Pre-trial (this list is not exhaustive but is typical of what a Judge requires from attorneys and parties prior to trial):
Note of Issue and Certificate of Readiness;
Approximately 30 days prior to trial, completed worksheets regarding the statutory criteria relating to spousal and child support and Equitable Distribution sworn to by each party;
An accounting of any claimed spousal or child support arrears;
A Statement of Proposed Disposition - this is a document submitted to the Court detailing each parties’ position and the legal authority for said positions;
“Cash flow” chart setting forth each parties’ proposal for how an income producing asset should be apportioned for the payment of a distributive award as well s other obligations such as spousal and child support, income taxes and interest on payments;
A list of all exhibits the party expects to present at trial;
A trial notebook - this serves as a guide for the Judge and opposing attorney as to what exhibits will be introduced at trial;
Witness list - this serves as notice to the Judge and opposing attorney as to what witnesses will take the stand and what issues they will testify to;
Expert witness list;
An updated Statement of Net Worth;
Meeting with the opposing attorney and stenographer to “pre-mark” exhibits for trial;
Draft and submit an Motions in Limine - this is a fancy way of asking the Court to exclude the opposing attorney from introducing certain evidence
Witness preparation
Document review
Rehearsal
Trial:
The Court can order that, once a trial begins, it will continue day-to-day until it is completed. However, due to the congestion of the Court system, most Courts have limited dates and times available. As such, you might commence trial one day and your second day of trial might not be until weeks later, and so on.
On the scheduled day of trial, the Judge will likely ask both attorneys if there is any chance of settlement and, if the attorneys agree that there is a chance, the Judge will likely tell them to leave the courtroom with their clients in a last-ditch effort to resolve the matter. If that proves fruitless, the trial will commence.
Post-trial:
Once both sides have “rested” their respective cases, the Court will order both sides to submit a post-trial Memorandum of Law, which reiterates all the factual and legal arguments presented at trial and provides the Judge with a handy reference and summary of the trial.
The decision to take a case to trial should not be made lightly. The sheer amount of intense planning and preparation involved in readying the case for trial is both financially and emotionally expensive.