Prepare for a divorce trial

It can be very helpful to watch a divorce trial. Trials are open to the public. If possible, you can even watch a trial with the same judge you’ll have at your trial. You can often find a listing of trials on your court’s website. Or, a court clerk may be able to tell you what days and when there are divorce trials.

Watching a trial will answer common questions:

• Where do I sit? 

• How many people will be in the courtroom? 

• How formal will the trial be?  

• How do witnesses testify and what cross-examination is like? 

• What do I need to do to get the Judge to consider my documents? 

This will help you prepare and make better decisions about whether it makes sense for you to go to trial.

In your trial, you will have to prove an issue. This means using the law to explain why your position is correct. This means, figuring out

• What issues you disagree about
• What the law says about that issue
• What you need to say to or show the judge to support why the law says that your position about the issue is correct

If you don't know what the law says about an issue, it will be hard to explain to a judge why your position is correct. You also won't know what are the best arguments and types of evidence you'll need to convince the judge your side is correct.

You can review some sample trial issues to see what you might need to prove

• What you prove at trial if the issue is spousal support
• What you prove at a trial if the issue is your date of separation

These just offer some basics information about these issues. This is just to get you an idea of what issues you'll need to think about, what type of research you will need to do, and what you'll need to do to prepare to present and argue a case at a trial.

One of the most important things you can do is prepare the information you’ll present in court to prove your case, called evidence.

Evidence can be:

• Documents or Things (or exhibits) 

• People (or witnesses) 

Exhibits

If you have documents or objects to prove your case (or disprove the other side’s) organize them in a way that even when you get nervous and rushed, you can find what you are looking for.

Many attorneys prepare a trial notebook, an organized book of all of the notes and evidence they will need in a case, coupled with an outline of the issues they wish to introduce with each witness.

Have three copies of your evidence prepared for your hearing. One for you, one to hand to the court, and one for the other party or their attorney if they are represented.

Witnesses

For some of the issues in your case, there may be a witness that can help prove your side or disprove the other's side.

Often, the only witnesses in a divorce are the couple divorcing. But, there may be other people who have important information.

If you’re asking a witness to testify (answer questions in court) at the trial, talk to them in advance. Let them know what questions you might ask and to be prepared for the questions your spouse or spouse’s attorney (if they have one) might ask.

Often your own witness will come to a trial if you ask, but it's often a good idea to subpoena them. A subpoena is a court order that tells a witness they have to come to court on a certain date to either testify or bring something (like a piece of evidence they have).

Learn when subpoenas are useful how to issue them

If your court requires it, you'll need to prepare a trial brief.

At least 5-days before your trial, you must prepare the trial brief, serve your spouse with the brief, and file it with the court.

The purpose of this brief is to give the judge basic facts of the case, and a summary of any disputed issues. This trial brief should include:

• Basic facts about your marriage (called the statistical facts) and if you disagree about any of these. Statistical facts: 

  • Date you married or registered your partnership

  • Date of separation

  • Length of your marriage or domestic partnership in years and month

  • Name and ages of any minor children you have together

• A brief summary of the case

• A description of all issues that need to be resolved at trial

• A brief summary of any appraisal or expert report you plan to use at trial

• A list of the witnesses you plan to have testify and a brief description of what the witness will say, as well as their name, business address.

• If any witnesses are experts, a description of their qualifications

• Any legal arguments you plan to use

• Anything else the judge may have ordered you to include

Some courts have templates that you can use when writing your trial brief. In other courts, you create your own. In either case, ask a law librarian or someone from your court's Self-Help Center if they have any resources.  You may also consider hiring a lawyer just to write the trial brief. These can be very difficult to draft without help.