I author many articles that deal with the settlement of a divorce or family law case. While it is true that most cases settle, there are a small percentage of New Jersey cases (1%-2%) that do not settle. A Judge decides the fate of the litigants when there is no settlement. While I strongly urge clients to settle their disputes, there are cases when it becomes impossible to do so. Therefore, the divorce case will go to trial.
Before the Trial
When a case is going to trial the most important thing for the lawyer and client to do is to be prepared. As a trial lawyer in divorce cases, I prepare and prepare again because this gives my client the best chance of success.
All issues that are to be tried must be identified, known and communicated in advance to the other side. All evidence that supports your position must be turned over to the other side at least 20 days before the start of the trial.
In order to prepare for trial, the lawyer and the client must spend a great deal of time together discussing the theory of their case, the law that supports their position and the law that is contrary to their position.
Taking the Divorce Case to Trial
The client will have to testify in Court before the Judge as to the areas in dispute and the client’s position with regard to the disputed areas. The client must be prepared to answer the questions truthfully, clearly, concisely and in a manner that a Judge would find favorable to their position.
If alimony, for example, is an issue to be tried, the Judge makes certain findings of fact and conclusions of law with regard to several statutory alimony factors as well as existing case law. The lawyer takes the client through every factor and presents testimony or other admissible evidence to support their position. The lawyer also addresses the relevant law governing both the amount of alimony sought including the length of time alimony is to be paid.
Once the client is finished being questioned by their own lawyer, called direct examination, the client will then be cross-examined by the other side. The goal of the other lawyer is to discredit, counter and challenge the testimony just presented to the Court.
In a trial, the plaintiff, or the person who filed the Complaint for Divorce or initiated the litigation, goes first. It is the lawyer’s job to present to the Court an opening statement. Then the lawyer will call all relevant and germane witnesses to prove each and every issue in dispute. Once your side has presented all of its evidence, your lawyer rests your case. Now it is the other side’s turn to present their case. They will present evidence and witnesses. To which, you can then challenge and cross-examine.
After the Trial
At the conclusion of the trial, the Judge will hear closing arguments from both attorneys. You can expect to receive a timely decision by the Court. However, there have been cases where litigants have had to wait a number of months to get a final decision.
The Judge’s decision is then binding on the parties and becomes the law of their case. This is final unless there are grounds for appeal. The law and procedural requirements governing appeals is complex and the subject of a different article altogether.
It is the right of every citizen to go to court to settle disputes. Trials are happening every day in courtrooms throughout our State. Divorce trials are a long and rigorous process that requires great skill of an attorney. A successful trial requires a collaborative effort between the lawyer and the client. The lawyer-client team needs to present truthful, competent and credible evidence in an organized and concise fashion. Failure to do so may not convince the Judge to decide the case in your favor.
Please contact me at jlawrence@lawlawfirm.com if you have questions about this post or any other family law matter