Divorce: What Happens During Trial
All divorce matters may be settled before trial through the agreement of both parties on the issues and in the reaching of a settlement. However, if parties are unable to reach an accord on all issues, the remaining issues which remains disputed would go to trial. In this case, you can save time and resources associated with a trial by trying only those issues that remain disputed.
Some states require a jury to decide on a case, but many others do not. It varies greatly on your State. Jury trails are not the custom. However, when they do occur, the issues apt for a determination by a jury may include:
• Asset Value
• Child Custody
• Fraud, Cruel Treatment and Fault Related Issues
In the case where trial is required, be it a jury trial or a trial with the court, the period wherein it will last will depend if there is evidence to present. For simple cases, it can go as short as a day, while for complex cases, it takes longer. There is no standard time.
If jury is present, the first half of the first day will be used to impanel the jury through a process called Voir Dire. In this process, each party to the case, through their respective counsels, may inquire of the jury to determine potential bias and strike jurors from the jury pool that display bias. A preemptory challenge allows each party to strike a juror for no stated reason. The number of allowed preemptory challenges varies from state to state.
After the jury is impaneled, the petitioner/plaintiff makes an opening statement summarizing the evidence they will present and what they believe it will prove. The respondent/defendant can also make an opening statement or reserve it until they start their case in chief. A case in chief is started when a party begins calling their own witnesses.
The plaintiff will start their case by calling witnesses and presenting evidence. Through his or her counsel, the defendant may cross examine and challenge the evidence. After the plaintiff finishes with their last witness, they rest.
The defendant then may begin by making their opening statement if they reserved it or they begin by calling their witness and presenting their own evidence. The roles are no reversed and the plaintiff may cross examine the witnesses called by the respondent/defendant and by making evidentiary challenges to any documentary evidence offered. When all witnesses have been called, the defendant rests.
Usually, each party makes a closing oral argument because in some states and in some cases, the court may allow that argument be made in writing in the form of a brief. This case often occurs in trials to the court and not a jury.
Subsequently, after the closing arguments, the Judge will read jury instructions or sometimes called the rules of the case, to tell the jury the presumptions of law and burdens of proof that apply and how they should look at the evidence. Only then does the jury retire to deliberate.
If there will be no jury, everything in the process is the same except the jury selection and reading the jury instructions and occasionally, opening arguments are waived.
If the trial is to the court, the Judge can take the matter under advisement and you will wait while he or she does so. An order may take fairly long depending on state rules. In fact, in some states, it may take as long as 90 days from the last submission.
There are a lot of intricacies in a divorce trial and it can be confusing for someone that is about to undergo it for the first time. The guidance of a seasoned family law & divorce attorney will definitely help you along the way, from negotiations to the actual trial.