If you have seen a movie or a television show about a divorce, then your divorce trial will not look anything like that. First, most movies and television shows take place in California, where the laws are much different than New York. Second, most divorce trials are long and usually pretty boring. Third, trials are very rare, about 95% to 98% of divorces do not go to trial, although, many are settled on the day of trial.
So what does a divorce trial really look like?
It usually will take two to three days for a divorce trial. Usually, these are consecutive days, but, sometimes, a trial can take place over several weeks, with only one day of trial each week.
The Plaintiff – the person who filed for divorce – would most likely be the first witness. They are asked questions by his/her attorney. This is called “direct examination”. Of course, the Defendant’s attorney can object to certain questions. After direct examination is finished, the Defendant’s attorney gets to ask questions of the witness. This is called “cross-examination”. Now it would be Plaintiff’s attorney to object to certain questions. After cross-examination is finished, the Plaintiff’s attorney gets one more chance to ask questions. This is called “re-direct” or sometimes “re-direct examination”. It is important to note, that re-direct questions are limited to asking questions that directly relate to what was asked on cross-examination.
Some Judges will allow more rounds of questions to the same witness. This would be “re-cross” and more “re-direct”. Again, in each round of questions, the type of questions that can be asked are limited to what was just asked by the other side.
After the Attorney is done asking questions of the witness, the Plaintiff can call more witnesses. Each witness will also receive direct examination, cross-examination and re-direct. Once the Plaintiff has called all of his/her witnesses, they “rest”. This means that they have brought forth all their witnesses and all of their direct evidence. Only in very rare cases, after the Plaintiff has rested, would the Plaintiff be able to call a new witness.
Once Plaintiff has “rested”, it is the Defendant’s turn to call his/her witnesses. Most likely, the Defendant will be the Defendant’s first witness. As with the Plaintiff, there will be direct examination, cross-examination and re-direct.
Once Defendant has called all of his/her witnesses, they rest as well. The trial is now over.
If the divorce involves children, and an Attorney for the Children (formerly called Law Guardian) has been assigned, then the Attorney for the Children also gets to ask questions of each witness.
Some Judges also want to hear “opening arguments” and “closing arguments”. An opening argument is where the Attorney will present an overview of the case to the Judge. A closing argument is where the Attorney will present a summary of the actual evidence that was just heard at trial. In some cases, the Judge will substitute a written closing memorandum instead of oral closing arguments.
The reason why divorce trials can be “boring”, is that there will usually be lots of financial information to review. This means that financial documents will be entered into evidence and questions about those documents will be asked.
If there are children involved, then there will be many questions about custody of the children. This can be very emotional. In New York, children do not testify, ever. The only time children would go to court, is if the Judge requests it. The Judge would then see the children in the Judge’s chambers, with the Attorney for the Children (what use to be called the Law Guardian). The Judge would ask the children some questions, but, they would never testify in the traditional sense.
Although most divorce cases do settle, David Badanes and the Badanes Law Office, P.C., has the trial experience that you need. David Badanes will spend the time to prepare you for trial and make sure you are ready.
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