What a Divorce Trial is Like, and Why You Should Avoid It
Feb 26, 2019 | Written by: Share|
If you have reached the point where your divorce case is going to trial, it means either one or both parties are unreasonable with regard to their position, or there is an obscure legal issue (very rare) that requires the court to decide the matter. If you are heading to trial, it means that despite multiple opportunities in the court process to settle your case, your case still has not settled. While the court process is designed to settle the case prior to trial, unfortunately, it does not always happen.
If you are going to trial, it also means you have spent a lot of money on attorney’s fees (unless you are self-represented) and you are about to spend a whole lot more. To go through the entire divorce process to get to a trial is expensive. However, the actual cost for the trial preparation and the trial itself are a multiple of what was spent before that point in time. By way of example, in a straight-forward case where there are not a lot of motions (requests of the court to take action while the case is ongoing) and not a lot of back and forth between the parties, you could spend in the range of $10,000 to $15,000 from the start of the case until trial preparation. The trial preparation and actual trial would then likely be in the range of $20,000 to $30,000 (or more), depending on the number of issues. That does not include additional costs you will incur if you have experts involved.
So what happens when you actually go to trial? The trial requires a substantial amount of preparation. It requires the attorney and the client to review all of the relevant documents to be utilized in court, as well as the documents the other side will use. It includes preparing testimony questions for the client and any witnesses, as well as preparing cross-examination of the other party and their witnesses. Typically, attorneys will need to discuss all of these questions with the client in advance of a trial. Trial preparation also sometimes includes reviewing expert reports and preparing either direct examination questions or cross-examination questions of an expert. This preparation typically starts a month or more before a trial, since all the trial documents need to be exchanged with the other party in advance of trial. A copy of all trial exhibits must also be provided to the court in advance of trial. Back-up information regarding the parties’ expenses and years of bank statements are typical exhibits used at trial, although exhibits could be anything relevant. Thus, trial preparation is extremely time-consuming.
After the trial preparation, what happens when the trial actually starts? Trust me when I tell you, these trials are not like they appear on television. Family law trials are not jury trials. They are called bench trials, which means the Judge hears the testimony, reviews the evidence and makes the decision. And because family law trials are bench trials, they are not necessarily continuous. That means you could be scheduled for a trial and spend hours waiting around the courthouse while the Judge deals with other matters. You could spend an entire day in court, paying your attorney for all that time, and only have an hour or two of actual testimony time in front of the Judge. And since these trials are not continuous, you might be in court for a trial on a Monday, the first week in September, and then your next trial date could be two or three weeks later. Because of this scheduling, it can take months to complete a trial. While courts have gotten much better in terms of scheduling consecutive days for cases, that does not always happen.
Often attorneys will argue over legal issues throughout the trial, which can make the trial take even longer. The trial testimony itself can at times be monotonous, as it can require reviewing individual bank statements and line items on the parties’ budgets. It also can be very time-consuming as a result. Attorneys must lead their clients through all the statutory factors for a particular issue and provide all the appropriate documentation to support their position.
The trial itself is very stressful and emotional for the parties. Not only does it take away time from work, but it also takes away the parties’ personal time and the time they are able to spend with their children. Sometimes the parties need to utilize vacation time from work for the days of trial. A trial can even jeopardize employment in certain cases, although courts try to accommodate where possible.
Ultimately, it is common for neither party to be happy with the end result after a trial. While parties may believe the court will hear their “story” and grant them “justice,” most of the “story” each party wants to tell is likely irrelevant and will have no bearing on the Judge’s decision, as the Judge will simply follow the statutory factors. Despite what parties believe, fault is unlikely to be a factor and although the court will hear both sides of the issues, in most cases neither party will be granted everything they are seeking.
It is clear that trials are extremely expensive, time-consuming, and stressful, and that they usually do not result in happiness for either party.
So what is the best way to avoid a trial? The best way to avoid a trial is to be reasonable and settle your case. There are many ways to settle your divorce case in the litigation process. However, there are also alternative dispute resolution methods that can help settle your case in lieu of the litigation process. These include collaborative divorce and mediation. While I have had many trials over the years, it is my experience that parties are more satisfied with their end results when they have been involved in crafting a settlement in their own case. In addition, statistics show that parties who settle their own cases are less likely to be back in court after a divorce.
If you would like to find out more about the collaborative divorce process or mediation, please do not hesitate to contact me. There is also information regarding these processes on our website. If you have any questions regarding this issue, or family law in general, please contact me at 908-735-5161 or firstname.lastname@example.org.
William J. Rudnik, Esq. is certified by the NJ Supreme Court as a Matrimonial Law Attorney. In addition to handling divorce litigation, he is qualified as a Mediator in the field of Family Law under the New Jersey Court rules, and he is trained in Collaborative Divorce. Contact Mr. Rudnik at 908-735-5161 or via email.
If you have a suggestion for a future blog topic, please feel free to submit it via the Contact Us form.