You made the difficult decision to divorce and worked hard to keep the process low conflict and out of court. Despite your best efforts, however, proceedings hit an insurmountable impasse and you now find yourself with a court date looming in the near future. Sometimes it is just not possible to reach a quick and easy divorce settlement through mediation or other out of court method. Don't be hard on yourself. Whether it's about your children's safety, your financial future, or your own well-being, there may be questions and concerns, or significant disagreements and conflicts that merit the intervention of the family courts. If you and your spouse are unable or unwilling to make decisions about contested (disputed) aspects of your divorce -- such as division of marital assets and debts, alimony, child support, or child custody -- going before a judge could be inevitable.
When a divorce is litigated in court, the process can involve multiple steps, including time to gather and share evidence, pre-trial hearings, settlement talks, and the trial itself. Is your divorce case headed to court, or are signs pointing that way? Here are some tips to prepare for the road ahead.
Learn the Rules: No two divorces are alike, and even in a contested divorce, the number of steps you go through will vary depending on how complicated your particular situation is and how much difference there is between the results you want and the results your spouse wants. Every state has its own set of court procedures for hearing divorce cases and establishing trial dates. In New Jersey, for example, once initial papers are filed and other preliminary steps have determined that your divorce contains contested issues, the courts will analyze the potential complexity of the case and assign it to one of a number of separate tracks. If the main issue you can't agree on involves child custody, your case may be put on an expedited court track to make sure your children are settled into a workable custody arrangement as quickly as possible. Your state judiciary's website should be able to provide you with basic information about how to start the divorce court process.
Have the Right Attorney By Your Side: With the stakes so high in divorce, there is simply no substitute for the trustworthy advice and clear legal guidance of a seasoned family law attorney. If court is in your future, you don't want to go it alone for some very basic reasons: Trial procedures are complicated and you will certainly face an un-level playing field if your spouse has an attorney and you do not. When searching for an attorney, look for someone who will explain your options, keep you up-to-date and informed about the maze of hearings and other court procedures, and who -- when it's show time -- will zealously and expertly advocate on your behalf. Ask your prospective attorney about their courtroom experience and how they will handle your case. You want to make sure that you will work well with the attorney and agree with their approach to your case.
Avoid the Wrong Attorney: One mistake many people make when choosing legal representation is to hire the most aggressive pit bull attorney they can find, thinking this will be a benefit in court. Be forewarned: attorneys who engage in needlessly adversarial tactics usually don't get too far with judges, whose job it is to ensure a fair and just settlement -- not a settlement with terms dictated by which spouse's lawyer yells the loudest. Unfortunately, what an overly aggressive attorney tends to be best at is dragging out your case, costing you time, money, and deep frustration.
Dig Into Discovery: After establishing your divorce as a court-track case, the first major step you will take in the process is discovery, a formal legal process that requires spouses to share information that is relevant to their divorce issues. Basic discovery includes sharing case information statements, interrogatories (questions that are answered in written form), and depositions. If necessary, more complex discovery will be conducted. Experts may be appointed by the court or retained by either party for purposes such as appraising property, valuing a business or pension, or conducting psychological examinations. Discovery is one of the first steps you take in your divorce case, and it is also the most important, as this information is what you and your attorney will use to prepare your case. Work carefully with your attorney to provide full discovery, and thoroughly examine (with the help of your attorney) information produced by your spouse. If your spouse fails to produce certain documents, including bank and financial statements, your attorney can ask the courts to order your spouse to do so, or potentially face sanctions for noncompliance.
Courtroom Cool: Divorce can take an emotional toll, and with a divorce trial date looming on your calendar, you may find the anger or sadness you feel about your divorce suddenly magnified with the addition of nervousness and worry over the prospect of going before a judge. At your divorce trial, you can expect the judge to be businesslike as he or she hears evidence in your case. Do your best to keep your emotions controlled in court and answer any questions the judge asks in a calm manner, staying focused on providing complete and accurate answers. On the emotional front, meet with a therapist, if needed, to help process your emotions and provide you with tips for staying calm.
Leave the Kids At Home: Unless their presence is specifically requested by the judge, divorce court is no place for your children. Some parents might think it helps them make their case by having their child there as a "surprise witness" to testify about his or her preference to live with the parent full time. Family judges, knowing how intimidating and scary it can be for kids to witness their parents on opposite sides in a courtroom, tend to disapprove -- strongly -- of actions like this. If any testimony is needed from your child, it can be given privately in the judge's chambers.
Keep Your Options Open: No matter how far along you may be in your divorce, it is important for you to know that even when your divorce is being litigated you still have choices, including the ongoing option to settle out of court. Many times, a divorce can begin as a contested case, but later becomes an uncontested divorce because the parties found a way to reach agreements and settle their disputes. Before trial, the judge in your case may encourage you to reach a settlement on your own by suggesting, or it might be mandated by the courts, that you and your spouse attend mediation for parenting and/or financial issues. If resolution remains elusive, settlement conferences with the judge prior to the trial will provide more opportunities to work out terms you both are comfortable accepting.
Even if you are in the middle of a hotly contested battle with your spouse, talk to your attorney about your options. Here's one little known fact: the vast majority of litigated divorce cases settle before trial. Could your divorce be one of them?