What happens in a Virginia custody or divorce trial?

Posted on May 16, 2014 by Katie Carter

If you’re facing a divorce or custody trial, you’re probably terrified and wondering what you can expect to happen. Your case has probably dragged on for some time, so you’re already feeling exhausted and overwhelmed. Depending on your attorney, your judge, and your locality, you’ve probably already gone through a number of procedural steps. You probably made a first appearance or had a pendente lite hearing, requested and produced discovery (which was in itself incredibly frustrating and time-consuming), attended any number of motions hearings or show causes, attended mediation or a judicial settlement conference, met with your attorney, and received an overwhelming amount of correspondence, usually in the form of emails or physical letters, between your attorney and your husband (or your child’s father’s) attorney.
Before you actually get to a trial, most courts require that you’ve exhausted every single other possible method to try to settle your case, rather than litigate it. To you, this might seem unfair or frustrating, especially if you knew from the beginning (and have been continually proven right by your husband’s behavior) that you wouldn’t be able to reach an agreement, no matter how many letters were sent back and forth and no matter how many judicial settlement conferences you attended.

I understand how you’re feeling, but, really, the court’s reasoning is mostly good here. The court prefers when people can solve their problems themselves. Not only because it saves them the time and trouble of having to do it, but because the court views these results as more desirable and more fair than whatever the court could order that the parties do.

In a lot of cases, settlement before trial is not only possible, it’s absolutely necessary. Trials make proceedings take longer and cost more money, so it’s just not really feasible for most people to continue to fight. They see that their inability to agree is rapidly depleting the amount of equity they have left in their house, or draining their retirement accounts. Seeing such practical side effects is a sobering experience, and leads many people to reach settlement (even when, at the beginning, it seemed like settlement was an impossible ideal). Not only that, but people who are able to reach an agreement between themselves indicate that they felt a greater level of satisfaction with the process. Trials are draining, and notoriously unpredictable. You’re at the mercy of the judge, and you could even find yourself in the courtroom with a judge who is having a really, really bad day.

Still, as terrifying as it sounds, sometimes trials are absolutely necessary. Not every case can reach a resolution, for one reason or another, and having a trial is the only way to move that case forward. If you and your child’s father are miles apart in terms of what you’re asking for, and no one is willing to budge, you will probably wind up in court. If your former partner is unreasonable or has a history of abuse, negotiating may or may not be possible.

If it looks like your case is headed straight for trial, you’re understandably nervous and worried about what this might mean for the ultimate outcome of your case. Rightfully so! It’s difficult (if not impossible) to know exactly what to expect, and no one has a crystal ball, so anyone who tells you that they know exactly how it is all going to go down is lying or exaggerating. While some parts of the trial may be possible to determine ahead of time (or, at least, certain things can look extremely likely), it really is impossible to know exactly how everything will be decided.

You’re probably wondering what a trial really looks like. Trials can be unpredictable, but in most cases they follow a format, so it’s usually fairly accurate to give a general outline of how the trial will progress from beginning to end.

What does a trial look like?

You probably have an idea of how a trial works from movies and reality TV. You’re probably not entirely wrong, but, just to be sure, I will go over the main elements of a trial to give you an idea. First, the attorney for the moving party gives an opening argument.

The “moving party” is the party who is asking the court to make a ruling. By filing a complaint in a divorce case, or a petition for custody and visitation in a custody case, you’re asking the court to make a ruling. The person who files first is referred to as the “plaintiff.” If you didn’t file these documents, but your child’s father did, and you’re in court responding to his petition, he is the moving party, and you’re the responding party. If your child’s father filed these documents, you probably filed an answer and counterclaim, if yours is a divorce case. The responding party is called the “defendant.”

Don’t get caught up in the terminology. Unlike in a criminal case, “defendant” doesn’t have a negative connotation in a family law case. It doesn’t really mean anything at all, except that you didn’t file first, and that has no prejudicial effect on your case. “Defendant” doesn’t mean that you stand accused of anything, or that there is any presumption that you’re a bad guy. It’s a totally neutral term, so don’t get caught up in it.

Being the plaintiff, or the moving party, does mean that you get to present your case first. But being the defendant means you get the last word in, so, don’t worry, you’ll get your turn!

The opening argument is the attorney’s first chance to present his spin on the facts to the judge. These are usually brief statements, not at all like what you see in the movies, where the attorney presents the issues of law and fact, offers his take on it, and tries to put a positive spin on his client’s situation. The attorney will sum up the entire case, including telling the judge what the evidence will show and asking for the specific relief the party seeks. After the moving party makes his opening statement, the non-moving party, or, if you prefer, the responding party or the defendant, gets a chance to make her opening statement, which covers basically the same information, but from the perspective of the other side.

After opening arguments, the case is officially opened. At this point, the plaintiff’s attorney puts on evidence, using witnesses and exhibits. Afterwards, it is the defendant’s attorney’s turn to pu ton evidence, also using witnesses and exhibits.

Then, it’s time for rebuttal. For most people, it is completely agonizing sitting calmly in their chair while their husband’s (or child’s father’s) attorney presents evidence. This is the portion of the trial where you have the opportunity to tell the court why the other side’s evidence is incorrect, impossible, or flat out wrong. We can use specific evidence, just like before, including witnesses and exhibits, to answer or disprove the questions and information provided by the other side. Again, just like before, the moving party goes first, and the responding party goes second.

Finally, before the judge is called upon to issue his opinion in the case, both sides have the opportunity to present closing argument. In a closing argument, both sides have the opportunity to summarize their evidence and make a persuasive argument to help show the court why it should rule in their favor.

The moving party has the “burden of proof,” meaning that it is that side’s responsibility to prove to the court that the court should make a change from the status quo.

If your case is for custody, either before or after the attorneys make their closing arguments, the guardian ad litem will give an argument to the court that includes her recommendations, and what those recommendations are based upon. The judge may make the ruling right then and there, or may deliberate for a period of time. There are no juries in family law cases, so the decision is left entirely up to the judge.
What does a trial feel like?

There is no question that a trial is stressful. Things don’t often go according to plan, and can cause a trial to get backed up. If there’s a trial from the day before that ran over, your trial can get pushed back until later in the day, or rescheduled completely. Sometimes, trials aren’t finished in one single day, and you may have to come back at a later date, maybe weeks or months down the road, to finish the trial. You should prepare yourself for the unexpected, and be able to roll with the punches as they happen.

Bring a snack or two with you, in case your trial runs over the lunch break. (It happens. A lot.) You don’t want to be distracted because you’re hungry.

You can also bring a book with you, if you think that reading may help you manage your stress while you wait. Make sure you bring an actual book, though, rather than a Kindle or other e-reader, because you probably won’t be able to get that past security.
For more information on how to prepare for the day, see my two-part blog series on what to do to prepare for court by clicking here for Part 1, and here for Part 2. These things will help make sure your day runs as smoothly as possible.

Should I settle? Am I risking a worse result if I go to trial?

The short answer is yes, of course, you’re risking a worse result. You’re always taking a gamble when you go to trial, and there’s no way around that. You need to know that the judge could, theoretically, order something worse than what the other side offered.

It’s hard to measure the risk exactly, but it’s something that you should talk about with your attorney in detail before you make any hasty decisions.

How might I know ahead of time what the judge is thinking, so I can know whether going to trial is worth the gamble or not?

You should definitely talk to your attorney ahead of time to decide whether trial is a risk worth taking. Especially in a divorce case, it may be possible to reach an agreement on some of the issues without resolving everything, so you go into trial knowing at least how some things will ultimately be handled. Of course, this is risky, too. It’s hard to reach a decision ahead of time with respect to how the marital home needs to be divided, or how retirement accounts will be settled, if you don’t know how much spousal support you’re going to get. Without an idea of the whole picture, it can be hard to negotiate some of the finer points. Still, it’s something that we see happen relatively often in cases where there are one or two main issues, but where we can ultimately resolve some of the other things. You’ll save money and time this way, too, because it’s cost effective to keep as many issues as possible out of court. For those issues, your attorney won’t have to spend time preparing, gathering evidence, questioning witnesses, or preparing arguments. It can make the whole process run more smoothly.

If yours is a custody case and you have a guardian ad litem, you’ll probably have a good idea how the judge will rule once you see the guardian ad litem’s report. Before you go to trial, the GAL is supposed to give both sides a copy of her report. In a lot of cases, the judges follow these recommendations. Ask your attorney whether your judge is likely to take your GAL’s report as gospel. If so, settle for more if you can get it, but keep the GAL’s report in your mind as a baseline, because you probably won’t do better at trial. Most judges really love and trust GALs.

Trials are messy and expensive, but sometimes they’re necessary. If you’re finding that a trial looks like it’s going to be necessary in your case, don’t beat yourself up. Get the information you need to make sure that your case is as successful as possible. Talk to an attorney, gather evidence, and begin to think about witnesses. If you’re interested in pursuing your custody case without the help of a licensed and experienced Virginia custody attorney, check out our seminar, Custody Bootcamp for Moms, designed to help moms represent themselves. Taught by Kristen Hofheimer, you’ll learn the ins and outs and secret tricks of custody attorneys, and give yourself the best shot possible in your custody trial.

If you’d like to talk to one of our licensed and experienced divorce and custody attorneys, give our office a call at (757) 425-5200 to set up a confidential one-hour appointment. It will be well worth your time!