Divorce Trial Preparation is the most important step in a divorce.
If your divorce ends up going for trials, you will need to be well prepared for what awaits. Thorough divorce trial preparations will improve your chances of achieving your desired goals with the case. If you’re a resident of California, there are two types of procedures you have to go through when preparing for a divorce trial. These procedures include the “Pre-trial Procedures” and the “Trial-Preparation Procedures”.
A. Pre-Trial Procedures
Due to the absence of the California Rules of Court that specifically address pre-trial procedures, courts follow some local rules to deal with marital actions. Some of these rules are applicable generally to civil actions while others are specifically applicable to family actions.
Most California courts use the “master calendar” system but there are other courts that have adopted the “individual calendar” system to reach the trials. But it is important to understand a resolution plan before reading about master calendar system procedures.
1. Family-centered Case Resolution Plan
The legislature has provided a process for courts to order a family-centered case resolution plan, (formerly referred to as a case management plan).
Courts, under this plan, provide parties with judicial assistance and management to enable them to come to a fair dissolution promptly while reducing proceeding charges. Under this rule, the courts have to review dissolution, legal separation, nullity, and parentage cases within 180 days from the day the petition was filed. This way, the court will be able to determine the most appropriate steps to ensure an effective, fair and timely resolution. Unless the court determines that procedural milestones are being met, the review must include a status conference or a family-centered case resolution conference.
2. Case Management Conference
Case management conference (CMC) can simply be defined as a collaboration among a judge, petitioner and respondent, and their attorneys. In this conference, either some or all the dispute is settled or it proceeds to the divorce trial.
In most civil cases, the case management conference approach is used in place of the older “at issue” approach to a trial setting. Although the civil court rules also generally apply in family law proceedings, for the most part, family law cases are excluded from the coverage of the civil case management conference rules. However, some family law courts in some counties have adopted a method named “trial-setting conference”.
3. Trial-Setting Conference
Trial-Setting Conference (TSC) is a visit of your attorney to the court to know whether the judge has determined to move your case towards trial or not. The judge makes the decision after determining if discovery is completed and if all disclosure documents have been exchanged. Effective July 1, 2002, the former calendar management and trial-setting rules were repealed and their main features incorporated in new civil trial court case management rules, many of which do not apply to family law cases. Family cases are subject to Cal Rules which state that the court can set one or more mandatory settlement conferences on its own motion or at a party’s request.
4. Settlement Conference
Judicially-conducted settlement conferences are usually mandatory. Mandatory settlement conferences may be held on the court’s own motion or at the request of any party. After you’ve been assigned trial date, you’ll be given a settlement conference date. Both parties along with their attorneys must attend this conference unless excused by the court for good cause. The conference is heard by a temporary judge.
5. Trial Continuances
Many courts, especially those in metropolitan counties, have adopted strong policies against continuances to aid in relieving backlogs of untried civil cases, including marital actions. According to these policies, the date set for trial must be “firm,” and a continuance cannot be granted without a showing of good cause.
A party seeking a continuance of a trial date must make the request by a noticed motion or an ex parte application under Cal Rules immediately the need for continuance is discovered. Local courts, however, vary in the degree to which policies on continuances are followed. As a result, counsel must consult the local rules of court to understand the specifics of court practices in a particular county.
B. Trial Preparation Procedures
Once the pre-trial procedures have been completed, then it is the time to be prepared for a divorce trial. Both the attorney and the client have to be more attentive and focussed to get fair court orders in a timely manner. Below are the details of all the steps and activities to perform.
1. Timing and Importance
Representing a client in a marital action entails continuously engaging in the preparation leading to either a settlement or a trial. Initial contact between the two is established and continues until the case is settled or trial begins.
A lawyer cannot competently achieve a positive settlement for the client without undertaking a certain level of preparation to develop and assert the client’s position on the various issues. Some elements are involved in the attainment of positive results in the trial such as the attorney’s capability to handle the case, authenticity and weight of evidence/proof, the demeanor of the witnesses, etc. The less prepared the attorney is the more delay in proceeding and chances of negative results will occur.
2. Preliminary Considerations
There are some important considerations and notable aspects that an attorney should pay attention to during trial time. Some of these considerations include;
- Impact of Emotion
- Multiplicity of Issues.
Divorce involve a much greater degree of emotion, interacting with economic and other practical considerations, than other legal matters. A typical business litigation client, for example, readily acknowledges litigation costs as a factor to consider in relation to potential results. Marital matter clients, however, are often too distraught to be practical and consequently must be counseled about economic realities.
In terms only of the result obtained, it may not be possible to overprepare a case. One can, however, overprepare a case in terms of the cost relative to that result. In preparing for trial in a marital action, the attorney must attempt to prepare adequately while avoiding a degree of preparation that is unreasonable in light of the particular circumstances and issues in the case and the range of likely outcomes. Clients have been known, for example, to incur more in attorney fees and costs litigating property issues than the value of the property involved. Obviously, there are limits to the validity of the cost-benefit analysis and the extent to which various outcomes in a marital action can be valued in purely economic terms. But the attorney who ignores such considerations completely does the client a disservice and significantly increases the likelihood that the client will be dissatisfied with the outcome.
Another result of the emotion inherent in marital actions is the need for the attorney to accommodate the client’s legitimate goals and directives without giving in to those that seem designed solely to harm others. When, e.g., the client seeks to assert a position without probable cause and for the purpose of harassing or maliciously injuring another person, the attorney should advise the client in writing that the Rules of Professional Conduct do not permit an attorney to assert such a position and, if the client persists, the attorney must withdraw.
3. Mechanics of Preparation
Some of the mechanics of the preparation are listed below.
(i) Identifying Issues
Identifying issues is one of the most important steps in the preparation for divorce trial. By noticing the Items 4–7 on the Petition and 4–9 on the Response, one can determine which matter may at issue. Some of these matters include;
- Legal custody
- Physical custody
- Child visitation
- Child support
- Spousal support
- Attorney fees and costs, and
- Other matters such as protective orders.
The Petition and Response will also provide a preliminary indication of whether any disagreement exists over the date of marriage or the date of separation, items that may be significant for some of the matters listed above, particularly disposition of property.
The indications obtained from the Petition and Response should be modified based on information and impressions gained as the case proceeds from, e.g., discovery, settlement negotiations, and stipulations.
(ii) Move Issue by Issue
After identifying the main issue under focus, the attorney has to move towards some important actions that are mainly related to give strength to the trial. These actions/procedures are:
- The attorney has to move forward to ascertain what is to be proved and to prepare the presentation of the evidence. An attorney will find out what is to be proved through legal research and evidence will be presented through the testimony of parties, lay witnesses (who can testify facts) and expert witnesses (who can offer opinions and inferences), and documentary records.
- Anticipating and preparing to meet an opponent’s evidence is the next thing that an attorney has to keep in mind. The attorney should be able to anticipate what evidence the opponent will bring forth and be ready to challenge it in order to discredit the evidence.
4. Organize Materials
Organizing the trial material is an essential element in the preparation of a divorce trial. Organizing materials is complicated by the fact that an attorney may not know how the evidence will be presented in court. In some proceedings, one party may be asked to present all his/her evidence before the other party presents his/her evidence. In other proceedings, the court will require the evidence to be presented issue by issue. Whichever way the court proceeds, an attorney must organize trial materials in such a way they are readily obtainable.
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