Divorce Lawyer Techniques: Trial Procedure

The order of divorce trials is often confusing. It is common for there to be multiple issues that each side has requested for the court to settle. Until going before the judge, however, it is often impossible to understand what the order of the issues will be.

A normal contested divorce Family Law case typically results in each former spouse filing competing lawsuits against each other. The way that this works is that one spouse’s divorce lawyer will initially file to get divorced along with some other incidental matter. The other spouse will respond to this filing by admitting or denying the allegations, and then using the initial filing to file other matters that they would like a court to address.

It is often in the best interests of all the parties involved and preferable to courts that all matters before a court be heard at one sitting, as long as this is practical. If the one of the parties sets a court date as part of the original proceeding, judges will usually allow the other party to set whatever any other matters that they would also like heard on the same court date. (Before doing this, it is good practice to ask permission from the judge’s law clerk, as it is normally an ethical violation to communicate directly with your judge if the other party is not also present.)

If the court has not set a court date, the procedure is usually to wait until all pleadings and discovery has been finished. Then your divorce lawyer will likely file a motion for the court to set for hearing the issues that you would like for the court to hear. Obviously, if an issue is not included that the other side would like heard, they will file a motion for the matter to be set before the court at the same time that the court has set for hearing you issues.

Either way, the court will be facing a jumble of contradictory and loosely related issues. To sort through how the court will address what and in what order, you and the other divorce attorney will usually request a pre-trial conference with the judge. Here the judge will look through your file and then make a decision of how to proceed for that hearing. The way that the judge decides may be completely arbitrary or there may be some sort of logic to it. (Judges also use pre-trial conferences to determine whether he can settle the issues and are almost always very useful.)

The importance of knowing that it is unpredictable how a judge will decide the order of trial is that you must prepare for the unexpected. For instance, the judge could decide that all issues will be heard concurrently, requiring one large hearing. Or, the judge could decide what is before the court individually holding multiple hearings. This means that, as a divorce attorney, you must be able to have your questions and strategy ready such that they can be easily assembled and disassembled depending on the court’s ruling for that day.

Of course, during the pre-trial conference that you have with the judge and the opposing counsel it is usually possible to request how the issues will be addressed. Judges, however, like to control their docket the way that they see best and so they may not wish to adhere to your suggestions. The best and sometimes only strategy is to prepare for the unexpected.

The above material is intended for information purposes only. It is not intended as professional legal advice and should not be construed as such. Attorney Will Beaumont practices in New Orleans, La.

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