Questions About Going to Court

How can I prepare myself for my day in court?

In cases where the spouses are not able to resolve their disputes without going to trial, divorce proceedings are a battle. Few people are prepared to deal with the reality of the courtroom and the fierce confrontations that often happen there. There may be no other time in the divorce process where it is more important to have an experienced lawyer who will fight to protect your interests. Depending on the issues that have yet to be resolved, your attorney will present your side of the argument and your spouse's attorney will present his or hers. Both you and your spouse will likely be called to testify and be cross-examined by your spouse's lawyer. Once the judge has heard all the testimony and seen all the evidence, he or she will make a decision. It is often best to work out a reasonable solution if possible. At trial, you give up control and leave it in the judge's hands. By reaching an agreement on your own, you still might not get exactly what you hoped for, but at least you maintain control of the outcome.

Does the judge decide our entire case if we can resolve everything except how to divide some of our property?

Generally, the judge has to sign off on the final judgment of divorce. However, if you and your spouse have been able to agree on everything except a minor property division, the judge will focus on the property division and will most likely leave the rest of the case alone.

What happens if our divorce case goes to court?

Depending on the issues that have yet to be resolved, your attorney will present your side of the argument and your spouse's attorney will present his or hers. Both you and your spouse will likely be called to testify and be cross-examined by your spouse's lawyer. Once the judge has heard all the testimony and seen all the evidence, he or she will make a decision. It is often best to work out a reasonable solution if possible. At trial, you give up control and leave it in the judge's hands. By reaching an agreement on your own, you still might not get exactly what you hoped for, but at least you maintain control of the outcome.

What is direct examination? How does it differ from cross examination?

Direct examination is where an attorney questions their own witness on the stand. On direct, every question should begin with who, what, where, why, when, how. These are non-leading questions. Direct examinations should advance your side's theory of the case. The witnesses should tell a story and the questions should ensure the statutory requirements pursuant to state statutes to obtain the relief the client is requesting.

Cross examination is only leading questions. Leading questions are those that typically call for "yes" and "no" answers. This can be setup by taking a thorough deposition in advance of trial. These questions must stay within the scope of questions asked on direct examination.

What is a deposition?

A deposition is the taking and recording of the testimony of a party or witness (lay or expert) under oath before a court reporter outside of the courtroom before trial. Depositions are part of the normal pre-trial process in a divorce or family law matter. Deponents will be sworn in and will truthfully answer questions asked by the attorneys. The questions and answers will be recorded by a court reporter. In fact, the testimony given in a deposition is similar to testimony given in the courtroom except a judge does not preside in the case of a deposition. The purpose of a fact-finding deposition is: 1) to determine what the story is and an individual's knowledge of the facts in regard to the divorce; 2) to know in advance, if the case goes to court, what is being contested; 3) to possibly narrow the issues in the divorce; 4) to try to catch a person in an omission or untruth that can later be used in court to discredit their testimony.

What if I don't agree with the judge's ruling?

One option is to file a post trial motion asking the judge to reconsider the ruling. You can also go forward with an appeal. Whether you want to appeal a custody judgment after a divorce or you believe the division of property was unfair, you may be wondering whether or not you can appeal the court's initial decision. Appeals are a complicated area of law, and an appellate attorney's knowledge and experience is critical to success. Hiring a lawyer is necessary in order to file, pursue or defend your appeal and there are time-lines that are critical to ensure that appeal rights are preserved. An attorney can gather all vital information, order and prepare transcripts, write the brief and present an oral argument before the appellate court. Another option is to modify the judgment at a later time.

If you have more questions and are interested in reading more about court, you can read our articles: American courts and their use of foreign law in family law cases and Preparing for a court date in your case.

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