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The Divorce Trial

Most divorce cases, even if they begin as contested matters, are settled prior to trial. Financial issues can usually be resolved once all relevant information is exchanged, appraisals completed, etc. While sometimes property distribution must be decided by trial, usually maintenance (alimony) and child custody are the unresolved issues necessitating trial.

If your divorce case is scheduled for trial, expect your attorney to spend several hours in preparation for your day in court. You must submit proof to support your case, which may include documents, witnesses, and recordings. Your proof is required to be submitted in proper form, in accordance with the rules of evidence, in order to be received by the court. This is one reason why doing a trial without attorney representation is very difficult. For instance, you may have a signed statement from someone supporting the facts of your case, but that signed statement cannot be received as evidence at trial in most circumstances.

Expert witnesses are sometimes retained to give testimony at trial. Typical expert witnesses include appraisers and doctors. If you have an expert witness testify on your behalf, you will need to pay that witness for their time at court. Expert witness fees can range from a few hundred to a few thousand dollars.

Evidence regarding property is generally limited to official documents, account statements, appraisals, and testimony of the parties. For example, both parties may wish to retain the marital residence, and will then testify as to why they should be allowed to keep the home, and their plan to refinance the mortgage and pay their spouse a share of the equity in the home. If the parties have not agreed on the value of the marital residence, generally an appraiser will testify , and one or both of the parties will present an original statement showing the mortgage balance remaining on the home. In most cases, all marital assets (those acquired during the marriage, with few exceptions) will be divided equally or nearly equally after trial. It usually does not matter in whose name an asset is titled, and all marital assets, whether titled individually or jointly, are subject to division by the court. The court may award certain assets to a party, and order that party to pay the other one-half the value of those assets, or the court may order that each party retain assets roughly equal in value.

If child custody is in dispute, usually the parties will have several lay witnesses testify regarding the parties' relevant fitness as parents. Teachers and pediatricians may also be called as witnesses. Sometimes, one or both of the parties pay a psychologist to evaluate the parties and children and give testimony about which parent may be more capable or mentally fit to be the custodial parent. See my prior posting regarding child custody in divorce actions for more information about custody disputes.

Often times maintenance (alimony) cannot be resolved short of a trial. This is because maintenance, after trial, is decided upon a number of factors, and therefore the parties and attorneys may be uncertain as to the amount that will be ordered after trial. While there is a statute giving a formula for determining maintenance on a temporary basis, that law does not apply to final determinations, and after trial the judge must decide the amount and length of maintenance to be paid based upon the facts and circumstances of the case. The judge will consider, along with other factors, the length of the marriage, the employment history of the parties, age of the parties, the standard of living enjoyed during the marriage, employment opportunities foregone for the benefit of the marriage, future employment prospects for the parties, and the current incomes of the parties. If a spouse is permanently disabled and a disparity in income between the parties exists, the non-disabled spouse may be ordered to pay maintenance for life. Otherwise, generally the maintenance obligation is set for a specific period of time designed to allow the receiving spouse to either reach retirement or obtain additional employment skills. In addition to financial documents, either party may present testimony of an accountant and/ or career expert to prove the need for maintenance, ability to pay maintenance, and the employment potential of the spouse seeking maintenance.

In addition to maintenance, if the parties have a disparity in income, the party earning more will often be ordered to contribute to the attorney's fees and expert fees of the other. However, if the court believes the property distribution, maintenance, and child support ordered is sufficient to place the parties in a similar financial position, the court may not award either party attorney's fees and costs.

Once all evidence is received by the judge, the judge will make the final decision as to property distribution, maintenance, child custody, and any other issues related to the marriage which may be at issue. The judge may make the decision quickly or may take several weeks to deliver their findings. The decision will delineate each party's rights and obligations as to property, custody, maintenance, and support. The court may order certain assets sold and/ or order one or both of the parties to make certain payments to the other. Whether the parties agree with the decision or not, the decision must be followed or the parties run the risk of being found in contempt of court.

As the trial process is quite complex, one should not attempt to represent themselves. If a party does represent themself, they will be expected to act as an attorney does, questioning witnesses properly and presenting evidence in proper form. Therefore, even if you have been representing yourself in the early stages of the proceedings, it is advisable to retain an attorney well prior to trial to allow your case to be properly prepared.

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Duke Law Firm, P.C.
3407 Rochester Road
Lakeville, NY 14480

Phone: 585-443-2486
Fax: 585-346-6850
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