Trials

This article explains the two types of divorce trials. Contested divorce trials and simple uncontested divorces. It all depends whether or not your spouse will agree to your divorce terms.

By Judge Roderic Duncan
March 19, 2009

There are two types of divorce trials: simple uncontested ones in which the spouses agree on all the terms of the divorce, and contested trials in which they disagree on some, or sometimes all, of the issues involved.

Legal Separation/Divorce Process

Uncontested divorces. Trials in uncontested divorces can usually be handled fairly easily by the spouses on their own without a lawyer's involvement. In some states, they can be handled by mail. Simplified procedures of this type are normally outlined in the local rules of your court -- and some courts publish their rules on a website. Self-help agencies can also help make the best use of local procedures.

Where a personal appearance is necessary, the trial will usually take just a few minutes. In some cases, the judge will ask the necessary questions, which are described below -- and all you have to do is say "Yes" several times -- or perhaps "Yes, Your Honor."

Depending on your state, the person actually filing the divorce is referred to as the "petitioner", "plaintiff", or "complainant" and the other spouse is the "respondent" or "defendant". In many cases, this is a legal fiction of sorts, since both spouses are anxious to get on with the process. But these are just legalistic labels to differentiate the parties.

You normally start by establishing your residence in the county and the length of your marriage: "I have lived in the state of _____ for (the time required in your state) and in the county of _________ for ___ months. We were married (date)."

You then must state some magic words establishing the state's acceptable reasons for the divorce. The required words vary from state to state, but they are easy to discover. You can find them out by visiting your courtroom when similar hearings are held sometime before your hearing date. You can also find them by going on the Internet to www.divorcesource.com, clicking on the heading "Grounds for Divorce", and then the name of your state. There you will see legal reasoning such as "irreconcilable differences which have caused the irremediable breakdown of the marriage".

In this example, the magic words you would need to tell the judge might be: "My spouse and I have irreconcilable differences which have caused the irremediable breakdown of the marriage." Or put a little less legalistically: "My spouse and I have had important differences that we cannot resolve and we believe that our marriage has permanently broken down."

Finally, hand the clerk any written settlement agreement that a lawyer or an Internet service has prepared for you or that you and your spouse prepared together. If only one of you is present in court, the other person should sign the agreement in front of a notary. Make a simple statement to the judge explaining the contents of the agreement, such as: "My spouse and I have agreed on the terms for our divorce as set forth in this agreement regarding support, custody of our children, and division of our property, and we request the court adopt it as part of our judgment of divorce." That should do it for an uncontested divorce.

Contested divorces. By contrast, contested divorces -- in which very little is agreed upon -- are much trickier to navigate. In addition to complying with the complicated state laws controlling the issues in a divorce, you must also abide by the laws of evidence that control the types of testimony that are acceptable in court.

If your case is headed for a contested trial, the court will probably schedule a settlement conference before a mediator or judge with the hope of resolving some or all of the disputed issues. Some courts will automatically give you a date for a conference with a judge to check out settlement possibilities and to assign a trial date. Others require you to file a form requesting that the case be moved to trial. Check with your local clerk's office to see what procedure it follows.

Dates for contested trials are normally assigned at least a month in advance of the trial. The gap in time from when your case is filed at the clerk's office and when your trial begins will vary, depending on how busy the court is and how complicated your case appears to be. Some courts get a contested case to trial within 90 days of filing; others have such a backlog of cases waiting for trial that some cases are still not tried a year after they are filed.


Judge Roderic Duncan presided over thousands of divorce cases over a period of 20 years. The Family Law Section of the California State Bar named him Judicial Officer of the Year. He now teaches family law to law students and new judges. This article has been edited and excerpted from A Judge's Guide to Divorce: Uncommon Advice from the Bench.


For more articles on the divorce process, visit http://www.divorcemag.com/articles/Separation_Divorce_Process.

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March 19, 2009
Categories:  Legal Issues

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