Chapter 18

Hearings and Trial

For many of us, our images of going to court are based upon movie scenes and television shows. We picture the witness breaking down in tears after a grueling cross-examination. We see lawyers moving around the courtroom, waving their arms as they argue their case to the jury.

The reality, however, is usually quite different. Going to court for your divorce can mean many things, ranging from sitting in a hallway waiting for your case to be called, to being on the witness standing giving answers to mundane questions about your monthly living expenses.

Regardless of the nature of your court proceeding, going to court often evokes a sense of anxiety. Your divorce might be the first time in your life you have been in a courtroom. Be assured that your feelings of nervousness and uncertainty are normal.

Understanding what will occur in court, and being well prepared for any court hearings will relieve much of your stress. Knowing the order of events, the role of the people in the courtroom, etiquette in the courtroom, and what is expected of you will make the entire experience easier.

18.1 What Do I Need to Know About Appearing in Court and Court Dates in General?

Court dates are important. As soon as you receive a notice from your attorney about a court date in your case, confirm whether your attendance will be required and put it on your calendar.

Ask your attorney about the nature of the hearing, including whether the judge will be listening to testimony by witnesses, or merely listening to the arguments of the lawyers. Ask whether it is necessary for you to meet with your attorney or take any other action to prepare for the hearing, such as providing additional information or documents.

Find out how long the hearing is expected to last. It may be as short as a few minutes or as long as a day or more.

If you plan to attend the hearing, determine where and when to meet your attorney. Depending upon the type of hearing, your lawyer may want you to arrive in advance of the scheduled hearing time to prepare.

Make sure you know the location of the courthouse, where to park, and the floor and room number of the court- room. Planning for such simple matters as having change available for a parking meter can eliminate unnecessary stress. If you want someone to go to court with you to provide you support, check with your attorney first.

18.2 When and How Often Will I Need to Go to Court?

Whether and how often you will need to go to court depends upon a number of factors. Depending upon the complexity of your case, you may have only one hearing or numerous court hearings throughout the course of your divorce. Some hearings, usually those on procedural matters, are typically attended only by the attorneys (though clients may attend all hearings). These could include requests for the other side to provide information, or for the setting of certain deadlines. Other hearings, such as temporary hearings for custody or support, are typically attended by both parties and their attorneys.

If you and your spouse settle all of the issues in your case, although not required, you can choose to testify at a final hearing in which the judge will review and sign your divorce order.

If your case proceeds to trial, your appearance will be required for the duration of the trial.

18.3 Will There Be a Jury at My Divorce Trial?

No, divorce cases are handled by a judge without a jury.

18.4 How Much Notice Will I Receive About Appearing in Court?

The amount of notice you will receive for any court hearing can vary from a few days to several weeks. A trial is typically scheduled for months and even a year in advance. Ask your attorney whether and when it will be necessary for you to appear in court on your case so that you can plan and prepare as needed.

If you receive notice of a hearing, contact your attorney immediately. He can tell you whether your appearance is required, and what other preparations are needed.

18.5 Once My Complaint for Divorce Is Filed, How Soon Can a Temporary Hearing Be Held to Decide What Happens With Our Child and Our Finances While the Divorce Is Pending?

How quickly a temporary or pendente litehearing can be held varies among jurisdictions. This is an issue to consider and discuss with your attorney in analyzing in which court to file.

18.6 I am Afraid to Be Alone in the Same Room With My Spouse. When I Go To Court, Is This Going to Happen if the Lawyers Go Into the Judge’s Office To Discuss the Case?

Prior to any court hearing or trial, you and your spouse may be asked to wait while your attorneys meet with the judge to discuss preliminary matters. A number of options are likely to be available to ensure that you feel safe. These might include having you or your spouse wait in different locations or having a friend or family member present. The bailiff (a deputy sheriff) is nearly always present in the courtroom. In addition, a deputy clerk and a court reporter are sometimes present.

Your lawyer wants to support you in feeling secure throughout all court proceedings. Just let you attorney know your concerns.

18.7 Do I Have to Go to Court Every Time There Is a Court Hearing on Any Motion?

It’s your case, so the best practice is to plan to attend all hearings. That being said, there are some hearings (such as a scheduling hearing) at which your appearance would provide little or no benefit to you or your case. Talk to your attorney before each hearing to discuss the issues to be addressed at the hearing, and whether your attendance is required or would be of benefit to you or your case.

18.8 My Spouse’s Lawyer Keeps Asking for Continuances of Court Dates. Is There Anything I Can Do to Stop This?

A continuanceis a delay or postponement of a court hearing or trial. Your attorney can oppose any request for a continuance. Judges typically require a sufficient reason before a court date is continued.

18.9 If I Have to Go to Court, Will I Be Put on the Stand to Testify?

You are likely to have to testify at any court appearance, including trial, at which evidence is submitted. Some hearings involve only legal arguments so you would not have to testify in that situation. Talk to your attorney in advance of any court appearance to find out whether you will need to testify.

18.10 My Lawyer Said I Need to Be in Court for Our Temporary Hearing Next Week. What’s Going to Happen?

A temporary hearing,often referred to as a pendente litehearing, may be held to determine preliminary issues such as who remains in the house while your divorce is pending, temporary custody and visitation, temporary support, and other preliminary financial matters. Pendente litemeans pending the litigation, and the temporary ruling typically lasts until the final divorce rulings have been made.

The procedure for your temporary hearing can vary depending upon the county or city in which your case was filed, and the judge to which the case is assigned. In some jurisdictions your hearing will be one of numerous other hearings on the judge’s calendar. You may find yourself in a courtroom with other lawyers and their clients, all having matters scheduled before the judge that day.

You and other witnesses may be required to take the witness stand to give testimony at your temporary hearing. If this is the case, meeting with your attorney in advance to fully prepare is very important. Talk to your lawyer in advance about the procedure you should expect for the temporary hearing in your case.

18.11 Do I Have to Go to Court if All of the Issues in My Case Are Settled?

No, as a general rule. The exception is when the case is settled immediately before trial and there is not adequate time to prepare a written settlement agreement to be signed. In that situation, the parties and counsel would appear in court, the agreement would be stated aloud in the presence of the judge and the court reporter, and the parties affirm the agreement on the record. The divorce evidence could then be presented at the same time. Typically, when a case is settled in advance of trial, the necessary evidence and paperwork is submitted to the clerk’s office by mail or delivery, and neither party appears in court before the judge.

18.12 Are There Any Rules About Courtroom Etiquette That I Need to Know?

Following are a few tips:

Dress appropriately. Avoid overly casual dress, excessive jewelry, revealing clothing, and extreme hairstyles.
Don’t bring beverages into the courtroom. Most courts have rules that do not allow food and drink in court- rooms. If you need water, ask your lawyer.
Dispose of chewing gum before giving testimony.
Don’t talk aloud in the courtroom unless you’re on the witness stand or being questioned by the judge.
Stand up whenever the judge is entering or leaving the courtroom.
Most courts do not allow parties to bring electronic devices into the courtroom. Check with your attorney in advance. If you have an electronic device in court, make sure it is turned off.
Be mindful that the judge may be observing you and those you bring to the hearing, so maintain an appropriate demeanor at all times.

18.13 What Is the Role of the Bailiff?

The bailiff is a deputy sheriff who is responsible for courtroom security.

18.14 Will There Be a Court Reporter, and What Will He or She Do?

A court reporter is a professional trained to make an accurate record of the words spoken and documents offered into evidence during court proceedings. A written transcript of a court proceeding may be purchased from the court reporter. If your case is appealed, the transcript prepared by the court reporter will be used by the appeals court to review the details of your trial.

A court reporter will be present in court for your case only if requested by one of the attorneys. You should have a court reporter present for all important hearings and the trial. Without a court reporter there is no accurate record of the proceedings for purpose of an appeal.

18.15 Will I Be Able to Talk to My Attorney While We Are in Court?

During court proceedings it is important that your attorney give his undivided attention to anything being said by the judge, witnesses, or your spouse’s lawyer. For this reason, your attorney will avoid talking with you when anyone else in the courtroom is speaking.

It is critical that your attorney hear each question asked by the other lawyer and all answers given by each witness. If not, opportunities for making objections to inappropriate evidence may be lost. You can support your attorney in doing an effective job for you by avoiding talking to him while a court hearing is in progress.

Plan to have pen and paper with you when you go to court. If your court proceeding is underway and your lawyer is listening to what is being said by others in the courtroom, write him a note with your questions or comments.

If your court hearing is lengthy, breaks will be taken. You can use this time to discuss with your attorney any questions or observations you have about the proceeding.

18.16 What Questions Might My Lawyer Ask Me About the Problems in Our Marriage, and Why I Want the Divorce?

That depends upon the issues in the case. In some cases there is little focus on why the marriage failed. In other cases, one or both parties attempt to show that the other party is to blame and is at fault for the divorce. It is common to focus on fault if equitable distribution or spousal support are at issue in the case.

18.17 My Lawyer Said That the Judge Has Issued a Pretrial Order Having to Do With My Upcoming Trial and That We’ll Have to “Comply” With It. What Does This Mean?

Pretrial scheduling orders are common in divorce cases. These orders establish deadlines that have to be met leading up to trial. Though the exact terms of these orders vary, they commonly establish deadlines for completing discovery, for identifying expert witnesses, and for disclosing witnesses and trial exhibits. You and your attorney should plan and prepare in order to meet or comply with the terms of the pretrial order.

18.18 What Is a Pretrial Conference?

A pretrial conference is a meeting attended by the lawyers, the parties, and the judge to review information related to an upcoming trial, such as:

how long the trial is expected to last
the issues in dispute
the law surrounding the disputed issues
the identification of witnesses
trial exhibits
the status of negotiations

Pretrial conferences are scheduled in some, but not all, cases.

18.19 Besides Meeting With My Lawyer, Is There Anything Else I Should Do to Prepare for My Upcoming Trial?

Yes, be sure to review your deposition and any information you provided in your discovery, such as answers to interrogatories. Also be sure to review any exhibits that will be introduced at trial. At trial, it is possible that you will be asked some of the same questions you answered in your deposition or at a prior hearing. If you think you might give different answers at trial, discuss this with your lawyer in advance. It is important that your attorney know in advance of trial whether any information you provided during the discovery process has changed.

18.20 I’m Meeting With My Lawyer to Prepare for Trial. How Do I Make the Most of These Meetings?

Meeting with your lawyer to prepare for your trial is important to achieving a good outcome. Come to the meeting prepared to discuss the following:

the issues in your case
your desired outcome on each of the issues
the questions you might be asked at trial by both lawyers
the exhibits that will be offered into evidence during the trial
the witnesses for your trial
the status of negotiations

Your meeting with your lawyer will help you better understand what to expect at your trial, and will help your attorney prepare to do her best on your behalf.

18.21 My Lawyer Says That the Law Firm Is Busy With Trial Preparation. What Exactly Is My Lawyer Doing to Prepare for My Trial?

Countless tasks are necessary to prepare your case for trial. Following are several of the most common:

Developing arguments to be made on each of the contested issues
Researching and reviewing the relevant law in your case
Reviewing the facts of your case to determine which witnesses are best suited to testify about them
Reviewing, selecting, and preparing exhibits
Preparing questions for all witnesses
Preparing an opening statement
Preparing a closing argument
Reviewing rules on evidence to prepare for any objections to be made or opposed at trial
Determining the order of witnesses and all exhibits
Preparing your file for the day in court, including pre- paring a trial notebook with essential information

18.22 How Do I Know Who My Witnesses Will Be at Trial?

Well in advance of your trial date, your lawyer will discuss with you whether other witnesses, besides you and your spouse, will be necessary. Witnesses may include family members, friends, child-care providers, or other people with knowledge relevant to the issues in your case. When thinking of potential witnesses, consider your relationship with the witness, whether that witness has had an opportunity to observe relevant facts, and whether the witness has knowledge different from that of other witnesses.

You may also have expert witnesses testify on your behalf. An expert witness will provide opinion testimony based upon specialized knowledge, training, or experience. For example, a psychologist, real estate appraiser, vocational expert, business valuation expert, or accountant may provide expert testimony on your behalf.

18.23 Can I Prevent My Spouse From Being in the Courtroom?

No, you and your spouse both have a right to be present for hearings and the trial associated with your divorce case.

18.24 Can I Take a Friend or Family Member With Me to Court?

Yes. Let your attorney know in advance if you intend to bring anyone to court with you. Some people close to you may be very emotional about your divorce or your spouse. Be sure to invite someone who is able to provide helpful emotional support for you.

18.25 Can My Friends and Family Be Present in the Courtroom During My Trial?

It depends upon whether they will be witnesses in your case. In most cases in which witnesses other than the husband and wife are testifying, the attorneys request that the judge sequester the witnesses. The judge would then order all witnesses, except you and your spouse, to remain outside the courtroom until it’s their turn to testify.

Once a witness has completed his or her testimony, he or she will ordinarily be allowed to remain in the courtroom for the remainder of the trial.

18.26 I Want to Do a Great Job Testifying in My Divorce Trial. What Are Some Tips?

Keep the following in mind to be a good witness on your own behalf:

Tell the truth. Although this may not be always be comfortable, it is critical if you want your testimony to be believed by the judge.
Listen carefully to the complete question before answering.
Slow down. It’s easy to speed up your speech when you are anxious. Taking your time with your answers ensures that the judge hears you, and that the court reporter can accurately record your testimony.
If you don’t understand a question or don’t know the answer, be sure to say so.
Don’t argue with the judge or the lawyers. Be nice and polite. It is important that you be likeable.
Take your time. You may be asked some questions that call for a thoughtful response. If you need a moment to reflect on an answer before you give it, allow yourself that time.
Look at your attorney as the questions are being asked, but turn and direct your answer to the judge.
Speak loudly enough to be easily heard.
Stop speaking if an objection is made by one of the lawyers. Wait until the judge has decided whether to allow you to answer.

18.27 Should I Be Worried About Being Cross-Examined by My Spouse’s Lawyer?

If your case goes to trial, prepare to be asked questions by your spouse’s lawyer. If you are worried about particular questions, discuss your concerns with your attorney. He can support you in giving a truthful response. Prepare for anticipated questions by your spouse’s lawyer. Try not to take the questions personally; remember that the lawyer is fulfilling a duty to advocate for your spouse’s interests.

18.28 What Should I Do if I Don’t Understand a Question?

You should say that. The judge will have the attorney repeat the question so you can hear it. If the question is ambiguous or confusing, your attorney can object and the judge will have the other attorney rephrase the question.

18.29 What Happens on the Day of the Trial?

Although no two trials are alike, the following steps will occur in most divorce trials:

Both attorneys make opening statements discussing the facts and issues in the case, and identifying the evidence they plan to present.
Plaintiff’s attorney calls plaintiff’s witnesses to testify. Defendant’s attorney may cross-examine each of them.
Defendant’s attorney calls defendant’s witness to testify. Plaintiff’s attorney may cross-examine each of them.
Plaintiff’s lawyer calls any rebuttal witnesses (these are witnesses whose testimony contradicts the testimony of the defendant’s witnesses).
Closing arguments are made first by the plaintiff’s attorney and then by the defendant’s attorney.

18.30 Will the Judge Decide My Case the Day I Go to Court?

Possibly, but probably not. Often there is so much information from the trial for the judge to consider that it is not possible for her to give an immediate ruling.

The judge may want to review documents, review the law, perform calculations, review his or her notes, and give thoughtful consideration to the issues to be decided. For this reason, it may be days, weeks, or in some cases even longer before a ruling is made.

When a judge does not make a ruling immediately upon the conclusion of a trial, the case is said to have been “taken under advisement.”

18.31 Can I Get a Different Judge?

An attempt to replace the judge is nearly always a waste of time and money. In addition, you should anticipate that the judge will not appreciate the allegations used by your attorney in the attempt. Putting yourself in an explicitly adverse relationship with the judge is not likely to help your case.