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)