Step 10: Trial – Avoid it if you can

Hi There,

If you are one of the approximately 95% of couples whose divorce will settle by agreement, be grateful; for the remaining 5%, this post is the barest of bare-bones descriptions of the process.

Trials are very artificial creatures and the preparation immediately leading up to them is easily as long and costly as the trial itself.  You should expect to spend time with your attorney getting prepared for trial, going over the questions she will ask you and preparing you for cross examination.  She will of course be preparing exhibits and the questioning of other witnesses as well.

The trial itself follows a clear set of rules, the plaintiff’s attorney and the defendant’s attorney make opening statements, then the plaintiff’s attorney calls her first witness and asks him questions, this is called direct examination. Then the defendant’s attorney has the opportunity to cross examine the witness.  Then the plaintiff’s attorney has the opportunity to clarify (or try to fix) any damage done on cross and generally this then is repeated with the second witness, etc. This continues until the plaintiff has finished putting in her case.  Then it is the defendant’s turn and the same process continues.  There are very arcane rules as to how to ask questions and what evidence is admissible.  In Massachusetts, private discussions between Husband and Wife, with a few exceptions, cannot be testified to.

At the close of the evidence some judges like to hear closing arguments from the lawyers, but most do not.  After the trial the lawyers generally have some time to prepare further written submissions for the Court based on the evidence that has come in at trial 

A trial is NOT the forum to try for one-upsmanship on your soon-to-be ex.  Remember that your demeanor may be as important as your words.  So…regardless of what is said: do not make faces, do not sigh audibly or in any way indicate that you disagree with what  the other side is saying.

Generally you will wait a while to receive the decision.  Judges are supposed to render them within 90 days but this is rare.  I have had cases take over a year.  Another good reason to settle.