Important Considerations for Spouses Going Through Divorce Litigation

 Posted on April 30, 2021 in Divorce

Being involved in any type of legal proceeding can be taxing, but finding yourself arguing about your marriage in a courtroom is especially difficult. It can be challenging to see your years of marriage being reduced to a legal battle and having a judge, who knows little to nothing about your life or relationship, make decisions about your future. While divorce litigation is often a last resort for divorcing couples, with the right attorney arguing on your behalf, you can be assured that your rights and interests will be protected.

Is a Divorce Trial Right for Me?

If you are in the beginning stages of your divorce, you should be aware of all of your options for resolving disputes with your spouse. Trial litigation is far from your only option, but depending on your circumstances, it may be the best fit for you and your family. Methods that you may use to resolve divorce-related issues include:

1. Divorce mediation - Some couples decide to divorce because they are no longer in love or are not happy being married to each other, and they may wish to resolve divorce-related issues with minimal conflict. For divorcing couples who can communicate openly with each other, are able to compromise, and want the best for each other, divorce mediation is a great option. You and your spouse will hire a third-party mediator who will guide you through the divorce agreement process, allowing you to make the decisions together.

2. Collaborative divorce - This type of divorce proceeding is the next step up from mediation when it comes to the structure of the divorce process. In a collaborative divorce, each spouse has their own attorney present to negotiate on their behalf when necessary, though the majority of the decisions will be made by the spouses themselves. The attorneys will only intervene when the divorcing couple cannot come to an agreement on their own. This typically only happens with contentious decisions, such as property division and child custody.

3. Trial litigation - Do you and your spouse have a combative relationship and are unable to come to an agreement on anything? In this type of situation, neither divorce mediation nor collaborative divorce will be good options. The two of you could spend weeks or months arguing about a single portion of the divorce agreement, adding up to years racking up attorney’s fees. You will need an authoritative party to make the final decision -- something that divorce attorneys are not legally able to do. Trial litigation will allow each of you to present your side of things and have a judge make the final decision. While it may not sound ideal, it may be the only way to come to a final agreement on the matter.

Finding the Proper Attorney

The divorce attorney that you decide to work with can greatly impact your experience with your divorce and ultimately your future, since the terms of your divorce agreement are legally binding. It is important to take the time to find the right attorney for your situation. You should first take inventory of your budget for the legal proceedings. Do you have a significant amount of income that you can spend on a high-dollar lawyer, or are you reliant on your spouse’s income to get by? For those who need financial assistance, you may get support from your spouse for legal fees, but you will likely still be required to pay for a portion of the costs yourself. You should have your budget in mind before speaking with attorneys, since this may be the determining factor when it comes to who you can and cannot work with.

In addition to the cost of the attorney fees, the lawyer’s professional experience should remain top of mind. If you know that divorce litigation is in your future, you should be looking for an attorney who has a track record of success in the courtroom. Being able to advocate for clients in a court of law is a skill that attorneys must build, so it is not advisable to put your trust in a divorce lawyer who focuses on out-of-court settlements. Many attorneys have experience with all forms of divorce proceedings, which can be a benefit for those who are unsure of which type of divorce is the best fit for them. These more well-rounded divorce lawyers can help you start with a collaborative divorce and proceed to trial litigation if you are unable to reach an agreement on the terms of your divorce. 

You should also be aware of the attorney’s case load and capability of taking you on as a client. Some divorcing spouses will turn to a large, well-known firm to be represented, but they may then find out that their attorney has very little time to focus their full attention on their case. A good strategy is to search for attorneys who have previous experience working at a large firm, but have transitioned to a smaller firm atmosphere so that they can dedicate their full attention to all of their cases. Attorneys like these will have extensive legal knowledge and a unique dedication to their clients.

Finally, you should be sure that your personality works well with your legal representative. You will likely get a feel for your attorney’s demeanor in your first meeting together, and if you notice anything amiss, hiring them may not be your best choice. You will spend a great deal of time with your attorney, and you must be open and willing to provide sensitive, private information about your marriage and family. This can be challenging to do with a person who you do not generally enjoy being around.

How to Conduct Yourself in a Courtroom

You should appear professionally regardless of the type of divorce proceedings, but your conduct is especially important in trial litigation. All of the final decisions regarding your divorce agreement will be in the hands of another person, and every word and action that you make can impact these decisions. It is important to be prepared for the court proceedings so that you present the best version of yourself to the judge. You will want to:

1. Be Punctual and Prepared - You should be on time to every scheduled court proceeding. Not only does this show that you are responsible, but it also gives the impression that the details of your divorce agreement are a priority. Make sure that you also have the proper paperwork in hand. Your attorney should tell you in advance what information you need, such as bank statements or written testimonies, so that you have proof of your circumstances whenever necessary.

2. Remain Calm, Cool, and Collected - Your divorce proceeding will undoubtedly lead to heightened emotions. Not only are you revealing private emotions about your family and relationship, but the decision-making power is also in the hands of another person. Avoid emotional outbursts or accusatory statements. They can make you appear to be frantic, out of control, or as if you are trying to cover something up.

3. Dress Appropriately - Similar to the point on punctuality, your overall appearance can impact the judge’s impression of you. Those who dress in a professional manner give off the impression that the divorce proceedings are important, whereas those who are disheveled can appear irresponsible. 

What Does the Litigation Process Entail?

Your attorney will likely give you a step-by-step guide to what the divorce process entails before you enter the courtroom so that you know what to expect before the legal process begins. This process will include:

1. Discovery - Once you and your spouse file for divorce, the discovery process will begin. This involves you and your spouse providing a full disclosure of your finances to each other. This information will inform decisions regarding property division, child support, and spousal maintenance. Your attorney may collect more information using interrogatories, depositions, or subpoenas to ensure that both parties are fully aware of each other’s circumstances.

2. Disclosure - Before the trial can begin, both attorneys must present the judge with a summary of their arguments, evidence, and witnesses. This will give the judge an idea of how things will proceed and a general understanding of the key points to be aware of.

3. Pre-Trial Conference - Both attorneys and the judge will have a private meeting before the trial begins to review the outstanding issues that need to be resolved. In some cases, the entirety of the divorce may need to be resolved, while other cases may be limited to outstanding issues related to property division or a parenting plan.

4. Opening Statements - Each spouse’s attorney will present the details of their case before the judge and anyone else present in the courtroom. They will give an overview of their client’s perspective and outline their needs in the divorce agreement. 

5. Evidence and Testimonies - Both parties will present evidence, such as financial statements, records of the parties’ capabilities as parents, etc. If witness testimonies are being used, each party’s attorney will be able to ask them questions and perform cross-examinations.

6. Closing Arguments - Each attorney will have one more opportunity to advocate on their client’s behalf, summarizing the points that were made throughout the proceeding and ensuring that their client’s desires are clear. 

7. Final Ruling - After hearing both attorneys’ arguments, viewing the presented evidence, and listening to any witness testimonies, the judge will provide their final decision on the matter. While this ruling is legally binding, either party can appeal the verdict if they believe errors were made during the trial.

Special Circumstances to Highlight

You should disclose any and all information to your attorney from the start of your working relationship. Being honest about your circumstances will ensure that they can properly advocate on your behalf. Going into your meetings with your attorney, it is important to highlight any defining circumstances about your marriage or family. For instance, if you have been a victim of an abusive marriage, you should be honest about this to your attorney. It may be difficult to let another person into the private details of your life, but your spouse’s past abusive behavior may lead to additional spousal maintenance, restricted parenting rights, and the implementation of a protective order.

Parents of children with special needs should also present an honest overview of their child’s needs. In Illinois, child support is calculated with a basic formula that takes both spouses’ incomes into account, but for kids with special needs, this may not be enough to cover their everyday expenses. If your child has special needs, and you properly present your additional financial needs to the judge, your spouse’s obligations may be adjusted to address these issues. Additionally, you will need a parenting plan that prioritizes your child’s needs, which may or may not include equal parenting time for each parent. It is important to highlight all of the important details of your life and marriage -- even those you may not see as applicable to your divorce -- to ensure that your divorce agreement meets your family’s needs.

Contact an Elmhurst Divorce Litigation Attorney

If you are looking for legal help with your divorce, the legal team at Weiss-Kunz & Oliver are here to help. Our attorneys have extensive experience with all types of divorce proceedings, including trial litigation. We are prepared to take on your case and give you the attention that you deserve. Contact our DuPage County divorce lawyers at 312-605-4041 to schedule your initial consultation.

Sources:

https://www.verywellfamily.com/important-child-custody-hearing-tips-2997846 

https://www.familylawselfhelpcenter.org/self-help/divorce/going-to-court22/33-preparing-for-trial-divorce