Chapter XIII
TRIAL
A note of caution: Changes in divorce law are constant and can occur at any time either through new legislation or new state or federal court decisions. Each year, many such changes will occur. Your best and most current information will come from a lawyer who is competent in divorce practice and who keeps abreast of such changes and who is familiar with your own particular marital history.
| Atty/Client | Married? | Jurisdiction | Grounds | Children | Sep Prop | Mar Estate | Alimony |
| Fees | Extrajuris | Procedure | Settlement | Contents | Misc | Shortcut | Moving On |
Your attitude about trial When will the case be tried? Trial setting
Trial procedure Life goes on after trial
If settlement is not reached, your case will be tried to your assigned trial court judge, without a jury. The purpose of this Chapter is to outline some of the structure of trial procedure so that you can become generally acquainted with it and begin to accept the reality that trial must occur if you and your spouse do not settle all of the issues involved with your case.
Your Attitude About Trial Top of Chapter
Even when parties are unable to reach a fair settlement, one of the spouses may be reluctant to present the case to the judge for trial. Various reasons are presented: "He'll be upset;" "I want us to keep a good relationship for the children's sake;" "I'm afraid;" "It will cost too much."
An unpleasant fact which needs to be considered is this: If a party is unwilling to take a case to trial if a reasonable settlement cannot be reached, that party must be prepared to enter into an unreasonable settlement. No other options are available.
Most probably, if you settle upon terms which are not generally suitable to your own needs but which you could predictably done better at trial, your momentary relief will later turn into regret.
Your settlement position, and your trial presentation, will benefit from your early willingness that the case be tried if good faith and fair settlement cannot be reached. It is a mental bridge to cross early in the litigation, for your own benefit.
When Will The Case Be Tried? Top of Chapter
As noted in the previous Chapter, although there are many exceptions, in Oklahoma County, experience generally is that trial will occur somewhere between six to ten months after the case was filed. Sometimes, the date will be much later, but it is rarely much sooner. Other counties will have different lead-time projections. In Oklahoma City and Tulsa, at least, you will have ample time to prepare your case for trial.
Getting to trial can be exasperating, because several factors in that occurring are beyond the control of you and your lawyer. Greatest of these factors are two:
(1) In many counties, particularly in Oklahoma and Tulsa Counties, there are too few judges available to handle the massive number of cases which are filed each year. In each of those counties, five judges are presently assigned to handle the family law division of the district court. Each judge will be assigned about one-fifth of the new cases and has already been assigned "old" cases, many of which become active each year with enforcement or modification procedures. For example, in 1996 in Oklahoma County, 6,535 new divorce cases were filed, 3,335 victim protective orders were sought, in addition to thousands more enforcement and modification actions (such as contempt of court, motions to modify custody, visitation or support, income assignment procedures and the like). These five judges must handle all of these cases. We simply need more judges.
(2) To attempt to handle as many cases as possible, several cases will be assigned for trial on the same date and time. Some of these cases will be settled by the parties; some will be agreeably continued for various reasons by the parties; but some will be presented to the court for trial on the assigned trial date. There's the problem and there really is no good solution other than more judges being available to handle the case load.
In Oklahoma County, multiple cases are scheduled for trial at the same time, often on a "trailing" docket on which a week's worth of cases are set for hearing on a Monday morning. You wait your turn and, hopefully during the week, the case will get tried. However, and not too infrequently, insufficient time will exist to hear all cases set for trial in which event the case will get "bumped," that is, rescheduled to a later date.
Being first on the trial docket provides no guarantee that it will even begin at the stated time. A case that began one or several days earlier may not have concluded, and the court may have decided to continue that trial until it did. That can cause the "first up" trial to get "bumped."
So, understand that just because your case is scheduled for trial, and just because you and your lawyer are totally prepared to proceed, these and other causes make it impossible for you to be assured that it will happen at the scheduled time.
The Trial Setting Top of Chapter
These persons will be present while court is in session: the parties, the attorneys, the trial judge and, if one has been requested and the $20 court cost paid, a court reporter. The judge will wear a black robe, you will dress as you ordinarily would for dealing with business circumstances and the attorneys will have on suits or dresses which are in keeping with the "uniform" that lawyers wear.
Everyone will have assigned seats, just like in school. The judge will have a high seat, emphasizing his/her status. The parties and their attorneys will be seated in a place of status, also, beyond the "bar," which separates the litigants from those who may be watching.
Since we have "open courts" in this country, anyone can watch who wants to do so, with two exceptions: (1) courts prefer that the parties' children not be present; (2) witnesses other than the parties may be excluded from the courtroom when they are not testifying.
Trial Procedure Top of Chapter
After the case is "called" for trial by the judge and the lawyers announce, "ready" to proceed, the lawyers will be given an opportunity to make an "opening statement." This provides each lawyer with an opportunity to preview their client's case--what do their clients want the court to do and why. Then begins the actual reception of evidence by the court.
The plaintiff's case is presented first. That means that the plaintiff calls witnesses to testify and introduces documentary evidence which the plaintiff thinks will establish an evidentiary and legal basis from granting the relief the court is asked to give. Then, the plaintiff "rests," meaning that he/she has no further evidence to present in support of his/her principal positions.
Then, the defendant presents his/her evidence, just like the plaintiff did. When completed, the defendant "rests."
After that, if there is need, the plaintiff may present "rebuttal" evidence responding to evidence offered by defendant, after which defendant may offer rebuttal evidence to plaintiff's rebuttal evidence. That usually ends the presentation of the evidence.
The parties' lawyers then make their closing arguments to the court, summarizing and commenting upon the evidence and the requests which have been made by each party, and it is done.
All but the decision. Sometimes, a court will decide the issues immediately. Sometime, the court will "take the case under advisement," meaning, the judge will think about and review what has occurred for as little as a few minutes or as much as several weeks before pronouncing the decision on the issues which have been presented.
While all of this (and much more which is not mentioned) sounds laborious and structured, the procedures are designed to provide fairness so that each party will have their "day in court." Your lawyer is trained in these rules and you don't need to know any of it. In essence, trial is nothing more than a conversation between people, even if it is a very structured one.
Life Goes on After Trial Top of Chapter
Whatever the judge may decide, whatever indignities you may have suffered, whether you "blown" your testimony, you will still breathe and you will not have been stripped of your every worldly possession. If you have good mental health, you will see that it is possible to survive and live well.
If you can gain that perspective now, you will not likely see trial of your divorce case as a life-or- death matter. Life after divorce will largely be in your own hands, to make of it as you will.
Top of Chapter Detailed Contents