How to Prepare for Your Divorce Trial and How to Testify in Court
Going through a divorce can weaken you financially and exhaust you emotionally. Divorce is one of the most profoundly painful and life-altering events you may experience.
Usually, if mediation is not an option, both sides will, with the help of their attorneys, attempt to settle things without going through a trial.
However, there are times when a settlement cannot be reached, and a trial before a judge is necessary.
When facing a divorce trial, a certain level of apprehension is natural, but being prepared will reduce that tension and leave you feeling much stronger and more assured.
With that in mind, here are a few ways to prepare for your day in court:
Block your calendar
Plan to devote the day to your divorce trial. Make plans in advance to take time off from work. Ask your attorney to meet with you before the trial day to prepare you for your testimony and brief you on what will happen in court.
Don’t be surprised if the original trial date gets continued (moved to another day) at the last minute, or if you don’t finish in one day
Gather all of your documents
As soon as you can, begin getting together all of the relevant paperwork that will help your case. If you have financial issues in your divorce, be sure that you have your paystubs, W-2s, tax documents, etc. at your fingertips.
Of course, your attorney will already have provided your spouse’s attorney with all documents that you will use during your trial. But you want to be sure that you have easy access to your papers, as well, in case a question about one of the documents comes up during trial.
Even if you think the paperwork is not important, put it aside, anyway. You can discuss its relevance with your attorney prior to court.
Meet with your attorney
Don’t wait until the last minute to sit down with your family law attorney to discuss your trial strategy, so you know how to prepare yourself and so you can fully participate in your divorce case.
What witnesses will you be calling to testify on your behalf? Have you prepared yourself for your own testimony? Did you let your attorney know your opinions on how your spouse will testify regarding certain issues?
Take some time with your attorney to go over the process and procedures and to review your evidence, so that you are familiar with what will happen in court and set to move forward with the trial confidently. Feeling prepared will help to relieve stress and anxiety.
Prepare for live testimony
Witnesses for you or for your spouse may testify in person before the judge. You and your spouse will likely testify as well.
There are two kinds of testimony: direct examination and cross-examination. There are no juries in divorce trials. After you've completed your direct testimony, your spouse or your spouse’s lawyer will cross-examine you and ask you questions about the things you said during your direct.
Your testimony must relate to the legal issues the judge has to decide. Regardless of your nerves or your desire to tell the judge everything that’s happened, you are legally limited to testifying about relevant matters only.
Don’t volunteer information that’s outside the scope of the question. Listen to the question, take a moment to respond only to what was asked. Let the question sink in for a moment or two before answering so that you or your attorney may have an opportunity to object if the question is inappropriate or legally impermissible.
Control your emotions
Remind yourself before you get to court that, even though this is an emotional time, you should not let your emotions show in the courtroom. Always be courteous and polite to everyone, whether on the stand or not.
You never want to be seen by the court as angry, irrational or unreasonable. Untoward behavior will only make the judge view you as an angry and irrational person, which might have an impact on the court’s decisions.
Even if your answer is damaging, answer all questions honestly. Do not embellish or exaggerate, just be truthful. Get straight to the point. Do not volunteer or suggest additional information no one asked you. You should be straightforward when answering questions.
Crying is okay. Divorces are emotional. The judge understands. You can be authentically emotional in court, you just can’t be rude or out of control. If you feel you need a few minutes, let your attorney know.
If you have questions before your divorce trial, don’t be afraid to ask your divorce attorney. They are there to support you through the process. Getting some quality sleep before your trial will help to keep your emotions in check.
Your lawyer will only call the best witnesses
Your witness must have firsthand, personal knowledge to testify. They can’t testify about out of court statements of others, or information they got from another person. The most basic first step in determining if a testimony from a witness may be hearsay is to figure out whether the witness was the originator of the information.
There are other things that go into a hearsay determination, and it can get complicated. Tell your attorney about the possible witnesses you believe may have personal knowledge relevant to the issues of your divorce. It’s their job to figure out who’s to testify at trial.
Familiarize yourself with the exhibits
Both you and your spouse will have to submit documents and other items as evidence in the trial. Be sure you're entirely familiar with all possible evidence, including the material your spouse will introduce.
There should be no surprises at trial, because in discovery, both of you will have exchanged all the items you intend to enter as an exhibit for the judge to consider. It’s also wise to bring extra copies of documents.
At the very least, for each document, you should bring a copy for yourself or your attorney, a copy for the opposing side, and a copy for the judge. Also bring pens and tablets, so you can take notes during the trial.
Don’t hyper-focus on the trial
Obsessing over your divorce trial before it begins is not healthy and will lead to mounting pressure that you simply do not need. Once you have gathered all of your evidence and met with your divorce attorney, relax and step away for a bit. Meet up with some friends for a relaxing night out, go for a run, read a funny book, whatever it takes to relax you and get your mind off the trial.
Playing every possible scenario over and over in your mind will only serve to stress you out further. Take some time for yourself. If you feel like you need a safe space to vent or some extra support, consider talking with a therapist who is experienced in helping people through divorce and family reorganization.
Remember you still may be able to settle
Even though your case has gotten this far, it is still a possibility that you will be able to settle your divorce case. Parties are able to settle their own cases and come up with their own marital settlement agreement right up until the point that the judge gives his or her decision, at the very end of the trial.
So, do not give up hope that you and your spouse may still be able to negotiate a reasonable agreement even if the divorce trial is already underway. Your spouse’s attorney may come with an offer of settlement at any time and your attorney may suggest or recommend a settlement, as well.
Be guided by your attorney’s knowledge and experience, but be sure that whatever offer of settlement is put out there is fair and one that you can live with long-term. Do not agree to any settlement simply because you do not want to go forward with a trial.
Appearance and grooming are key
Your lawyer won’t come to court in jeans or a team sweatshirt. They dress to show respect for the court and to present a professional image for their clients and for themselves. If you do the same on trial day, you can’t go wrong.
The court will be assessing your credibility and perhaps your fitness as a parent. Making a good first impression by dressing appropriately and respectfully can only help boost your credibility.
Divorce trials can be lengthy and are always physically and emotionally draining. There is no privacy in a trial. The cross-examination process can be ruthless, difficult, invasive and exasperating. There is no assurance that your outcome will be in your favor.
But follow the above guidelines and you will give yourself the best chance for a positive outcome in your case. Of course, follow the specific advice of your own attorney as you prepare for trial. Preparation and staying calm and focused are the keys.
Working with your attorney to get you ready and get you confident will help you to get through your divorce trial with less stress and more aplomb.
And by all means, consult with a divorce financial analyst who is a certified expert on the financial aspects of divorce and your financial rights in California. An attorney knows the law, but a divorce financial analyst knows the ramifications of various financial options and considerations, and how they might impact your future.
Take Control of Your Future
Divorce is stressful. My job is to make the process easier and help both you and your attorney review your options so you understand the impact of your financial decisions and how they will affect your future.
Kimberly can provide step-by-step guidance on matters related to divorce. With a wide range of experience and expertise related to divorce issues, our team will simplify the process and provide much-needed clarity in areas such as long-term tax consequences, asset, and debt analysis, dividing pension plans, continued health care coverage, stock option elections, protecting support with life insurance, and much more.
This information is not intended to be a substitute for seeking legal advice from an attorney. For legal or tax advice please seek the services of a qualified attorney and/or qualified tax professional.