When a divorce goes to trial
Almost every divorce settles, and almost nobody can tell you how many. What is certain is that the small share that do not settle are decided by a stranger in a courtroom on the basis of what each side managed to prove, and that the run-up to that is where the money goes. This page is about when that is worth it, and what actually happens if it is.
The number everybody quotes, and why it is not here
You will read that 95% of divorces settle. Sometimes 90, sometimes 97. We went looking for the source of that figure and there is not one. The National Center for State Courts does not publish a national divorce trial rate. The most serious study of how domestic-relations cases actually move through state courts, run by the Institute for the Advancement of the American Legal System, looked at eleven courts and explicitly declined to extrapolate its findings to the country.
So: the overwhelming majority of divorces are resolved by agreement rather than by trial. That is true, uncontroversial and worth knowing. The decimal point is invented, and a site that invents one number will invent others.
When litigating is the right call
Litigation is not a temperament, it is a tool, and it is the correct tool in a narrow and identifiable set of situations. The question is never “do I want to fight”. It is whether there is something a judge can give you that negotiation cannot.
Reasons that hold up
- You cannot see the assets. Negotiation requires knowing what is on the table. A court can compel disclosure and punish concealment; a mediator cannot. When you think assets are being hidden.
- Safety, or a child at risk. Nothing here is negotiable and orders are the point.
- A genuine legal question. Whether the business is marital, whether the prenup is enforceable, whether the inheritance was commingled. These have right answers and someone has to give one.
- The other side will not participate. You cannot settle with someone who does not turn up. A default is a litigated outcome.
- The gap is enormous and the stake is enormous. If the difference between the two positions dwarfs the cost of trying it, trying it is rational.
Reasons that do not
- To be told you were right. No judgment contains a finding that your marriage ended because of them. This is the single most expensive motive in family law.
- To punish. Courts divide property and arrange children. Most states will not weigh who behaved worse in the property division at all.
- Because they were unreasonable in one email. Positions move. Openings are not outcomes.
- Because your lawyer is confident. Confidence is not a forecast, and the person forecasting is paid by the hour either way.
- Over an amount smaller than the fight. Work out the cost of contesting the issue before you contest it, and compare the two numbers on paper.
Many states make you mediate before a judge will hear you. California requires mediation in contested custody and parenting-time disputes before the hearing. North Carolina routes family financial cases through a settlement program. Utah requires mediation in divorce cases, with a process for being excused from it. Those three we have read; the rest we have not yet checked. Ask the clerk what your county requires before you plan a trial.
How a contested case actually moves
The sequence below is California’s, taken from the state judiciary’s own self-help guide, because it is the clearest official statement of a structure that is broadly the same everywhere. Names and deadlines differ by state; the shape does not.
- One spouse files, the other is served. The case exists from filing. The clock on the other side’s response starts at service, not filing.
- The response, or the default. No response within the window and the case can proceed without them, on the filing spouse’s terms.
- Temporary orders. Support, the house, the children, and sometimes the legal fees, decided in weeks and lasting until the end. This is where a case is often really won. What to expect, and what to expect to pay.
- Mandatory financial disclosure. Both sides exchange what they have. This is not discovery and it is not optional; it is the price of admission.
- Discovery. Interrogatories, document requests, subpoenas to banks and employers, and depositions. The long version.
- Mediation or the settlement program, where the state requires it.
- The pretrial conference and statement. Each side sets out what is still in dispute, the witnesses, and the exhibits. Anything not listed here is often not coming in at trial.
- Trial. Usually days, sometimes hours, occasionally spread across months because the court has no consecutive time.
- Judgment, with findings of fact and conclusions of law. Then the clock for an appeal starts, and it is short.
What a divorce trial is like
There is no jury in a divorce in almost every state. There is a judge, who in the words of California’s own guide listens to both of you, hears from witnesses, reviews evidence, and decides the issues you disagree on. The party asking for something generally goes first.
- Direct examination. Your side asks you and your witnesses open questions. You are under oath.
- Cross-examination. The other side asks leading questions designed to produce short answers. The skill being tested is not honesty; it is discipline.
- Exhibits. Documents have to be admitted before the judge can look at them, and the rules of evidence apply in family court like anywhere else. A text message you did not disclose in discovery is often a text message the judge never sees.
- Experts. Valuers, custody evaluators, vocational experts, forensic accountants. Each one is a second retainer. Hiring a valuer covers what they cost and what they are actually for.
- Closing argument, then findings of fact and conclusions of law — the judge’s written reasons, which are the thing an appeal has to attack.
Depositions
A deposition is sworn testimony taken outside court, usually in a conference room, recorded by a court reporter. Anyone with relevant knowledge can be deposed, not only the two of you — a business partner, an accountant, a new partner, an employer. Under the federal rules a deposition may be used at trial to contradict or impeach a witness, and an adverse party may use a party’s own deposition for any purpose. State rules generally parallel this and differ in the details.
Which is why the usual advice is real advice: answer the question asked, stop talking, and do not fill silence. A transcript has no tone in it. Everything you volunteer is available to the other side for the rest of the case.
Fed. R. Civ. P. 30 and 32 (rule 32); California Courts Self-Help Guide, the divorce process and the divorce trial.
Dos and don’ts, from the things that go wrong
Do
- Keep a dated, boring record from the beginning. Contemporaneous beats reconstructed every time.
- Disclose everything, early. The asset you hid is worth less than the credibility you lose hiding it, and credibility decides the discretionary calls.
- Obey every order you disagree with while you appeal it. Self-help is the fastest route to being the party the judge distrusts.
- Write for the judge, not the ex. Assume every message you send will be read aloud in court, because the ones you regret will be.
- Cost each issue before you contest it, in fees, and compare it with what winning is worth.
Don’t
- Do not record without checking the law where you are. Recording rules vary by state and an illegal recording can be a crime as well as inadmissible.
- Do not put the children in it. Judges see coaching, and it damages the parent doing it more than anything the other parent did.
- Do not empty accounts or move assets. Many states impose automatic orders against exactly this the moment the case starts.
- Do not post. Social media is discoverable, screenshots are exhibits, and deleting after the fact is worse than posting.
- Do not treat the first offer as the position. Or the second.
Keep reading
- Discovery — what can be demanded, and how to answer it
- Temporary orders — the hearing that sets the year
- Questions to ask a lawyer
- Retainers, and firing your attorney
- Appealing a divorce judgment — and the deadline that ends it
- Reopening a divorce that is already final
- What people actually pay