Divorce Trial

divorce trial

The majority of states now require that couples seeking a divorce where there are issues of property division, spousal support or child custody, attend mediation. If mediation fails and the couple is unable to resolve the case, the divorce proceeds to trial. In some states, all issues in the case are tried together. In other states, you may have one trial for property division, a separate trial for alimony, and yet another trial for custody and child support. In most states, your trial will be in front of a judge who will act as the trier of fact. However, there are states where you could ask for a jury trial.

Family Court Case Process: Filing to Trial

Step 1. Divorce Complaint

If you or your spouse choose to go straight to litigation, the first step is filing a complaint or petition. The complaint alleges the basic facts of your case, list the claims you are bringing, and request relief from the court. In notice pleading states the complaint will be shorter and contain much less information. Some states have form pleadings that must be used and other states have no forms and everything is drafted individually.

Step 2. Service of Process

The second step is to serve the complaint on the defendant. There are two types of juristical requirements for the court to hear your case. The first requirement is subject matter jurisdiction.

Subject Matter Jurisdiction 

Subject matter jurisdiction means the court has jurisdiction over the subject of the lawsuit you are bringing. For equitable distribution or community property claims, that generally means that your property is located in the state or that you primarily live in the state. Jurisdiction in child custody claims is governed by the UCCJEA. In the majority of cases, the state will have jurisdiction in an initial custody action if the child has lived in the state for at least 6 months prior to filing the custody lawsuit. Once the court has subject matter jurisdiction, the court needs personal jurisdiction over the defendant.

Personal Jurisdiction 

Personal jurisdiction means that the court has jurisdiction over the person to make the person appear in court to answer for the claims in the complaint. In most cases, this means that the person lives in the state where the lawsuit is filed. It may also mean that the defendant spent time in the state. For example, a court could gain personal jurisdiction over a parent of a child even though the parent doesn’t live in the state where the child lives. Personal jurisdiction for child support is usually where the parent who will pay support lives.


In order for the court to have personal jurisdiction over the defendant, the plaintiff has to serve the complaint on the defendant. The rules of civil procedure must be followed. Most states won’t allow a plaintiff to personally hand the complaint to the defendant. In most cases, the defendant is served by a local sheriff, certified mail, or a private process server. It’s important to know the state rules around service. If you get it wrong the lawsuit could be dismissed. There are usually deadlines around how long you have to serve the defendant once the lawsuit is filed. In most states, a summons is issued with the filing of the lawsuit. Once service is completed the summons is returned to the court to show how the defendant was served. If the complaint is filed by certified mail or by private process server an affidavit of service may be filed. In cases where the plaintiff does not know where the defendant lives and after making diligent efforts cannot find the defendant, the court may allow the plaintiff to serve the defendant by publication in a newspaper where the defendant was last known to live.

Jurisdiction can be complex and complicated. Even attorneys struggle with cross border issues and jurisdiction in modification cases. It’s important to meet with an experienced attorney about these types of issues. Failure to follow the proper steps can result in your case being dismissed even after a trial.

Step 3. Answering the Complaint

Once the complaint has been served on the defendant, the defendant will have time to answer. Generally, the time to answer is 30 days. In most states, the defendant can get an additional 30 days to answer by filing a motion to extend time to answer. The answer will be a response to each allegation in the complaint. The defendant may also bring claims which are called counterclaims. If the defendant files a counterclaim the plaintiff may answer.


Step 4. Discovery

Discovery is the formal process of gathering documents and information needed to try the claims alleged in the complaint and counterclaims. The parties can submit discovery requests to each other for any information that might lead to something that can be used in court.

The discovery process may involve submitting questions known as interrogatories to the other side or submitting a request for documents. You may hear your attorney call these Rogs or RPDs for short. You may see the abbreviation IRPD on your billing statement.

Once the interrogatories or request for production is received there is generally a 30 day time period to answer and produce the documents. Most states allow for a 30-day extension of time to answer. The request for an extension of time may be a formal motion or consented to by the attorneys. In many states, this will be granted as a matter of course and is not something to fight over.

After the answers and documents are exchanged if a party is not satisfied the answers or production is complete, a motion to compel may be filed. The motion to compel is heard in court. The party seeking the documents or answers must show the court that the request could lead to something useful to the claims and that the other party didn’t respond to the question fully. If the judge agrees and order to compel is granted and the party is given some time to comply. Many states also allow the party bringing the motion to request that his/her attorney fees be paid by the other side.




Step 5. Mediation

Typically, after the parties have exchanged documents through discovery they will attend mediation. Mediation may be through a private mediator chosen by the attorneys or through a mediator appointed by the court. Mediators usually charge for their time and are compensated by the parties. Most mediators are highly trained and many are experienced, attorneys or former judges.

On the day of mediation, the mediator may start in a large conference room with both parties and their respective attorneys. This is often called the opening. The mediator will explain the rules of confidentiality and set any hard stop times. Mediation is a confidential process and what happens in mediation cannot be used in court.

The mediator will likely have you and your attorney go into one conference room and have the other party and attorney go into a different conference room. Once everyone is settled the mediator will start negotiating a settlement by going between the rooms.

If a deal is reached, the attorneys may want to memorialize the details in a mediated settlement agreement or consent order that is signed by the parties and their attorneys.

Step 6. Trial

The length of the divorce trial depends on the complexity of the case, the number of unresolved issues and the number of witnesses called by each side. A trial may take one day or several weeks.  At the end of the divorce trial, the judge will announce the judgment on various issues that will be memorialized in an order. The judge may draft the order or ask one of the attorneys to draft the order. The judge may give a decision the same day as the trial or take time to consider the evidence prior to giving the ruling.

Plaintiff’s Case

The plaintiff presents the case first.  If you are the plaintiff, you or your attorney will call your witnesses to testify and ask questions. The process of questioning your witness is called direct exam. After you question your witnesses the opposing side will have a chance to ask questions. This is called cross exam. At different points during the plaintiff’s case, the plaintiff may move exhibits into evidence for the judge or jury to review. After the plaintiff is finished presenting evidence, the plaintiff will rest and pass the case to the defendant.

Defendant’s Case

The process is then reversed, with the defendant calling on their witnesses who are then cross-examined by the plaintiff’s attorney. The defendant may also enter exhibits into evidence.

Plaintiff’s Rebuttal

Depending on the evidence presented by the defendant, the plaintiff may be able to bring a rebuttal witness in to testify.