If you are representing yourself without an attorney, you will need to know the step-by-step procedures for a trial. If you’d like to observe an actual trial, most divorce courts are open to the public, and you can quietly slip into a courtroom to observe. You can also consult a trial practice book. A detailed explanation of the procedures is also included in the appendix to this book.
If you are represented by an attorney, the attorney will guide you through the procedures which must be followed, but like with any trip, a map of where you are going is helpful. This chapter includes a short explanation of how things work. For a good article on prepping for a trial, click here.
When you enter the courtroom, the judge presides behind the center podium. A court reporter sits in front. You will take your place at the table facing the judge on one side of the room, and your spouse will do the same across the room. Typically, there is no jury. A court officer sits toward the front of the room as well. He or she will swear in witnesses and announce the judge’s comings and goings.
The plaintiff’s side gets to present first. If you are represented by an attorney, the attorney will decide the order of witnesses and will pose all of the questions. If you are representing yourself, you will make those decisions. The plaintiff gets the opportunity to present his or her whole case before the defendant gets a chance to present his or her side of the story. As the plaintiff calls each witness, the defendant (or the defendant’s attorney) asks questions of each witness after the plaintiff is done. Then the next witness is called. This procedure continues until the plaintiff has finished his or her side of the case. Then the plaintiff “rests the case”, which is the official phrase which tells the judge it’s the defendant’s turn.
The defendant then gets to present his or her side of the case. Ideally, the defendant will not repeat obvious, undisputed facts which were presented in the plaintiff’s case. Facts like “when and where were you married?” and “how old are your children?” need not be repeated. The defendant’s case should focus on introducing defendant and advocating his or her perspective through testimony and evidence. The same procedure for cross-examination as described above is used during the defendant’s part of the case.
In highly conflictual cases involving children, the court may appoint an attorney or other advocate, a guardian ad litem, to represent the minor children. This attorney/guardian will present the case from the children’s point of view after the defendant is finished and “rests”. Click here for an interesting article on high conflict custody cases.
When presenting evidence, it’s easy to get caught up in the minute details of the marriage, and to offer hours and hours of testimony on details that are not relevant to the judge. There’s a fine line between important details, and those that just slow down the proceedings. The judge will not want testimony about a picnic in 1986 during which your spouse called you a “bitch” in front of friends and neighbors. On the other hand, where detail is warranted, don’t be afraid to present it. Click here for a good article on preparing to present evidence in court. Make sure you’re clear in your own mind why the incident is important, and the most concise way to get that point across. This advice is important whether you’re represented by a lawyer, or whether you’re representing yourself. Every lawyer has a story about having a judge fall asleep during a trial–don’t let it be yours!
Excerpted from Your Divorce Advisor: A Lawyer and a Psychologist Guide You Through the Legal and Emotional Landscape of Divorce (Simon & Schuster/Fireside 2001). For more information: http://www.yourdivorceadvisor.com/.
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(C) 2008 Peace Talks Mediation Services, Inc.
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