The majority of divorces can be settled without a trial. However, there are instances where a trial is necessary. “About 5% of the divorces I’ve represented go to final trial,” said Andi Lawrence, Partner and Family Law Attorney with Lawrence & Jecmen PLLC. This is close to the national average where more than 90 percent of divorce cases settle prior to trial, according to Lawyers.com. Lawrence finds that a larger number of cases that end up in court do so for temporary orders – about 30-40% – to uncover, discover and come to a temporary solution around issues related to the divorce process such as financial matters or children.
“Once a couple has gone through the temporary orders process, they realize they will almost never get the ‘validation’ they seek from a judge and this motivates them to work to stay out of court for a final trial and to settle their divorce issues, if possible,” added Lawrence.
Lawrence shared that early in a divorce process, individuals have not yet had the time that it takes to mentally and emotionally settle down and come to grips with what’s happening in their marriage and its breakdown. There is often a lot of hurt and anger and an unwillingness to work out agreements. Spouses often believe that a judge will scold or punish the other spouse, which rarely happens.
It’s important to note that Arizona, like all 50 states, is a no-fault state. This means that in making decisions, the court is prohibited from punishing wrongdoing by either party. “Often people want their day in court to let the judge know the horrible things their spouse did so a judge will validate how they were victimized by their spouse, but in a no-fault state, it doesn’t matter. Unless related directly to children, a spouse’s wrongdoing will not impact the judge’s decisions about the children either. “Being a bad spouse does not equate to being a bad parent,” shared Lawrence.
The no-fault concept is important to understand when considering how to settle a divorce of which it comes down to one of two ways:
- The parties reach an agreement without litigation.
- Or the case goes to trial, and a judge makes a decision where neither spouse has control over that decision.
Lawrence always counsels her clients to avoid a trial, if possible. She said it’s a very emotional and expensive process. The burden as an attorney to prepare for a trial takes a lot of time and is costly in attorney’s fees. It also takes longer to finalize a divorce via trial, taking months – typically 3-6 – to get a trial date set.
Before we break down the process of a divorce trial to help you fully understand what that looks like, let’s look at the non-court options for reaching a divorce settlement:
- Mediation: For mediation, both parties usually have attorneys hired. A time is scheduled for the mediation session, typically a full day. Each attorney prepares a memorandum outlining each parties’ desired outcomes. These memorandums are provided confidentially to the mediator. During the mediation, each party and their attorney is in a separate room and the mediator goes back and forth between the two rooms to try to negotiate agreements. It is not unusual for the parties to go the entire day without seeing one another. The goal is to come to a reasonable agreement that meets most of each parties’ desires. The agreement is put into writing for both parties to sign and ultimately gets finalized and presented to a judge in written form without either party needing to go to court.
- Settlement Conferences: In this option, both parties and their attorneys are present. Everyone is in one room around a table with the goal of working out agreements amongst themselves without a formal mediator present.
- Informal Negotiation Between Attorneys: Here the attorneys work together, with the input of their clients, to come up with agreements in the best interest of everyone. Often there are many calls and emails back and forth between attorneys and their clients to reach agreements.
- Arbitration: This is the least ideal option for out-of-court settlement, in Lawrence’s opinion as it still leaves a final decision to a third party, not the clients. Here an arbitrator is selected by the parties, effectively serving as a private judge. In this situation, there is still the formality of a trial in terms of preparation, testimony, and exhibits, but it may save time as it can typically be scheduled more quickly than a trial through the County Court system. The arbitrator is typically someone very experienced in family law such as an attorney or former judge.
- Parties Work it Out Over Coffee: While Lawrence says this rarely happens, occasionally both spouses get together and craft their own agreements. Attorneys can then review, provide feedback to their clients, and formalize the agreements for presentation to a judge.
For all of these options, Lawrence shares that it’s important to have the knowledge and information to realistically assess the spectrum and range of possibilities of what a court might do, even if the goal is to settle outside of court. “When we know that range, we can look to come to a settlement that’s somewhere within that realm. We have to consider the cost-benefit analysis of agreeing to an option in that range as compared to the financial burden and emotional cost of going to trial.”
Staying outside of court offers a lot more opportunity to be creative in the resolution,” said Lawrence. “Without a trial and by agreement, you can come up with almost anything that the parties agree is reasonable and works for both of them. There is so much more flexibility than at trial where the final decision is entirely in a judge’s hands.”
When a Divorce Goes to Trial
While it’s best to settle a divorce outside of court, there are times when a trial is necessary. Typically, a divorce ends in a trial when one side is simply unwilling to negotiate or be reasonable. “If one side is not participating meaningfully in providing disclosure and transparency around issues, sometimes you just need a judge to take control and end it,” stated Lawrence. “We try to avoid trial, but in these situations, it can be necessary.”
The Timeline and Steps in a Divorce Trial Process
When a divorce goes to trial, here are the steps and requirements to expect:
- Once a trial date is requested, it can take as much as 3-6 months for that trial date to be set.
- Sixty days before the trial date, each party is required to disclose all of their experts and expert opinions.
- Thirty days before a trial, parties are required to disclose all other witnesses and complete all other disclosures of anything related to any of the issues so that there are no surprises.
- Seven days before a trial, parties have to identify and provide copies of everything that they might want to use as an exhibit to the other side and the court. Each party also has to provide the court with a pre-trial statement. This statement is a very detailed and lengthy document that explains all of the facts and legal bases for the parties’ positions on all of the issues.
Preparing for a Divorce Trial
From an emotional and preparation standpoint, Lawrence ensures that her clients understand what they will experience on trial day from the process of testifying to the rules of court. She also provides an outline to her clients of how she intends to question them so that they know the order of the issues and questions in advance.
Lawrence also ensures that her clients are familiar with the exhibits. “Clients are often nervous when testifying. When they testify, they can look at the exhibits/documents, but they can’t have any notes with them,” shared Lawrence.
It’s also important to note that there is not a lot of time in a divorce trial, particularly in Maricopa County. On average, 6 hours is common. This time is equally divided between both sides. The typical maximum is 2 days which is two 6-hour time slots. To get this amount of time, you’d have to convince the judge that there is a lot of information to present. Examples might include where one or both parties own a business, there are mental health or addiction issues, or complex employment or financial issues, to name a few.
When a Divorce Trial Doesn’t Go the Way You Wanted
If a divorce trial doesn’t go the way a client desires, what options do they have? There are options to request an appeal. Lawrence shares that before making that decision, she will go through the ruling and do a cost-benefit analysis with her clients to determine how much it will cost, if the negative ruling was nevertheless understandable, and if there is a basis for an appeal. If there is, the next step is to have an appellate attorney review and provide additional counsel.
“There is such a high unpredictability with a divorce trial,” said Lawrence. “I try very hard to educate my clients about this and that their desired outcome, if reasonable, is much more likely achieved by focusing on settling their divorce outside of court.”
If a trial is necessary in a divorce, it is important to have an attorney who is highly experienced in preparing for and navigating the court system.
To learn more about the family law services provided by Lawrence & Jecmen PLLC, you can contact them here.