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I've noticed recently that there is a rather common concern among women going through divorce, and a significant fear, of litigation or, to use the more common term, a "divorce trial." So I thought perhaps it would be helpful if one of us who actually went through a full litigation, i.e. divorce trial, could provide some information. I hope that other women who went through a divorce trial will also share their experiences.

I recall vividly when my divorce attorney said to me, "Well, I've seen it take as long as five years for a divorce with this amount of assets to go to trial." He almost had to peel me off the ceiling because I was positively stunned, shocked, and disbelieving that a marriage could end up in "a trial"! Why on earth would two people who had been married for two decades need to "go to trial"?! Trials were for crimes, not marriages! I did not understand it, and sadly, divorce attorneys don't explain it well, if at all.

It seemed to me that divorcing and dividing assets in a marriage should simply be another version of making decisions, like making the decisions throughout the marriage; what car to buy, what refrigerator to purchase, how to remodel the house. If we could manage these decisions, then what was so complicated about dividing up what was, in my mind, clearly an issue of "half is mine and half is yours"?

As so many women quickly find out (but take longer to really grasp fully) when a man is divorcing he is "strictly business" in his approach. After whatever emotional responses he has to the divorce (whether initiated by him or not) he immediately turns his attention to preserving assets, hiding assets, playing games with the assets, destroying assets, and so on. And, most shocking to us women is the fact that "his" attorney helps and guides him all the way in being devious, clever, and cunning.

We women tend to stand on the sidelines wringing our hands and whining, "Oh, how can he do this? How can he be so mean? What happened to the man I used to know?" (the guy with whom you could select the refrigerator noted above).

And so what does it mean to "go to trial" in a divorce?

In short, it's not the scary, "to be avoided at all costs" matter that we women tend to think it is. A divorce trial is not to air all the dirty linen. It's not a "She did, he did" drama, like a daytime soap. It is, to put it simply, the standard legal way that contracts are examined, broken, changed, or ended, when the two parties to that contract can't come to a decision. Marriage is more than a white dress in a pretty church; it is a legally binding contract over which the State retains the right to rule whether or not it can be dissolved. It is a legal process.

The process is for each side to present to the court (the Family Court Judge) their demands, backed up by their documents and reasons for their demands. Of course there are "arguments" on both sides, i.e. reasons for the demands, presented both in writing and then orally by the attorneys representing the parties.

But here is the most important point: A trial can be your best friend because the decisions made by the Judge are not arbitrary. He makes his decisions based on (A) The facts presented (B) The supporting documents provided, and (C) Case law that is already on the books, i.e. cases that have already happened over the years on which judges have ruled.

Trials are not cheap. And divorce trials are NOT at all like trials shown on TV crime shows. A divorce trial is very rarely scheduled to take place all at once in a continuous number of days. Typically a divorce trial will begin with motions filed by both sides, motions which the Judge and/or his clerk, will read and rule on. This can take days or weeks.

When the trial is actually commenced, the first day will be scheduled, allowing only a couple or few hours. The second day of the trial may not be scheduled for as much as several weeks, again for an hour or two. This procedure plods on until all evidence is presented. In my case, we were in court on many days over a number of months (and yes it was five years before the trial began). On the final day of "trial" the Judge then states that he will rule within a time frame, usually a few weeks.

Another reality of a divorce trial is that it is not private. It takes place in Family Court and whoever wants to may sit in the gallery. Often there are people in the gallery who are there because they also have divorce business scheduled to be dealt with that day, so they are waiting for their turn.

And throughout the arguments, it is not at all uncommon for a clerk to enter the courtroom and go up to the Judge with documents for the Judge to sign, which he will do while the attorneys continue to drone on with their arguments. At times the Judge may also turn to his computer and type; this can be disconcerting but it is normal.

And throughout all of this, the court reporter is recording every word spoken by the attorneys, the Judge, and witnesses (of which you will most likely be called to testify; but not about "his" bad behavior, about what you know about the assets and your right to them).

In short, it is best to avoid a trial, but it is not something that is so bad or so terrifying, or so stacked against you, that you should avoid it at all costs. In fact, if you are one of the lucky ones for whom the STBX is going to be stuck with the court costs, you are better off to go to trial, or threaten to go to trial (but keep in mind that, in these cases, one of the bargaining chips that is often tossed into the pot is that you will pay for your half of the court costs from the settlement you are eventually awarded).

I hope that this helps a bit in dispelling the idea that a "divorce trial" is something that is so dreadful that you should literally give the farm away to avoid it. That isn't always the situation, as a good Judge can be your best friend (most of them can recognize a lying man, or woman, at fifty paces).

(originally posted by beentheredonethat)

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7 comments

  • Comment Link Karen Wednesday, 19 April 2017 02:54 posted by Karen

    I'm heading for trial. So sad and any suggestions or help would be appreciated. I've been a stay at home mom for 35 years. He owns a bery successful business has a business partner. I know he's hiding assets and being deceitful. I now have to prove my lifestyle what kind of worlds do we live in that men think they can have all the control?

  • Comment Link Nick Wednesday, 25 January 2017 05:20 posted by Nick

    Who wants to litigate a case for 5 years? I would go crazy sometimes you have to put a price on peace of mind and moving on with your life. Nevertheless having a good attorney is a must if you go pro se you will be ran over by the court. Best to settle and if that cannot happen make sure you are prepared at trial. Some courts focus on facts some more on lies it's hard to say also you case can be appealed which makes everything else much more expensive and dragged out.

  • Comment Link Christine Sunday, 22 January 2017 03:40 posted by Christine

    I am scared to death! I'm Pro Se because I do not have the money for an attorney. I have been a stay at home homeschooling mom for 10 years. My 9 year old son is Autistic, his dad has plenty of money to maintain his attorney for the last 2 years. I'm signed up at the food bank and rely on my church for help. I moved to this state for my ex's work, I have no family and only a few friends who are fortunately willing to be witnesses. My STBX has been ordered supervised visits. I have the fact that he has not once in the last 3 and a half months even tried to see our son. I do have a Guardian Ad Litem that is not easily fooled. I tried 2 different settlement offers both of which my STBX denied of course. In his first divorce he got everything. I don't intend to get everything but I want my son and with his special needs I do feel somewhat confident I will be able to get some of what I am asking for to help take care of him. As long as I have full custody of my son and have the court ordered child support, I have won. Money can always be replaced, my son can't be.

  • Comment Link Jaded Jenny Wednesday, 10 February 2016 10:17 posted by Jaded Jenny

    With all due respect to the author, this article is farthest from the truth. My adultering ex and I recently completed a 12+ month catastrophic divorce, at which plenty of dirty laundry was dragged out and made public. I was denied counsel, had to represent myself pro-se for the pendency of the case, and at the trial. Was made homeless, literally as a result. So yes, you should avoid a trial at all costs. Family court is not criminal court where there usually is a clear cut right and wrong component. It's all about attorneys, bias judges, and affluence. The party that has it wins...simple as that. In other words, no one really wins. Except of course the soon the be ex whom controls the purse strings....And that was not me.

  • Comment Link Donna Hare Sunday, 04 October 2015 10:55 posted by Donna Hare

    My husband has lied so much on his form E and my solicitor has found so many hidden accounts where he has hidden so many assets. Im going to trial on 18th November. lm very scared and worried. He left me with a six year old and a 3 month old baby, my mother dies of cancer and he was having an affair. He left us for the other woman and has tried to bully me out of the house, he has emotionally abused our children and been utterly horrendous. l am feeling extremely anxious about the whole situation. My solicitor has unearthed so many lies do you think it will be ok. Will my life be better after this and will l finally be able to stop being scared and have a life back.

  • Comment Link 20YearsGone Thursday, 23 July 2015 23:02 posted by 20YearsGone

    I am going through trial and finding that this is not about the numbers and exhibits of proof determine an equitable distribution but it is about the skill of the game. My STBX's attorney is objecting to witnesses of the truth, not stipulating on valid appraisals, and now has succeeded in limiting my trial time so that I cannot present the facts. I was sticking to the numbers, 50/50; but he and his GF want more...and they have their 2 incomes to fight my 1 income. It is sickening....especially when I will be on the clock to present my over 50 exhibits to his unlimited time to present 8 exhibits.

    He is undervaluing what he has in his possession by coming to court with "liquidation value at an absolute auction" when the court clearly states "fair market value" ... who takes their vehicle to an auction for an appraisal? I took mine to the Ford dealer...it's all dirty games...very dirty...and to allow his perjury without a blink of an eye (in his deposition he said he had "no contact" with his new GF prior to filing for divorce but then I accidentally ran across phone records that proved otherwise) ... well it isn't at all about truth and numbers... He filed and therefore it seems he has the upper hand...and he even gets to bring his GF to court to be one of his "expert witnesses" ... how sweet. The system sucks...they don't want the truth.

  • Comment Link Deborah Sunday, 17 May 2015 20:35 posted by Deborah

    Hi,

    I'm sorry but I did not see a person name associated with this article. I filed for a divorce and recently went to a mediator to try and settle. My husband and his attorney decline the settlement offer, and now it looks like I will be going to trial. You were so right about the husband they become strictly business only. We are only fighting over one thing which is the home equity. Our daughter is 24 year old, and about a year ago I had signed off on his retirement, which I should have not done, but because of his threats I gave in. The mediator did say that he would have to pay for the court cost. I appreciate you explaining the divorce trail information, it was really helpful. Thank you so much.

    Deborah