Have you and your ex-partner been at an impasse for a while? Have you tried multiple dispute resolutions, but still cannot agree on a decision? It might be time to start talking about going to trial.
A trial is the final stage in the litigation process. It is a structured procedure where the facts of your case will be presented in front of a judge, and they will decide the outcome of the case. Family law trials are unique because they are always decided by judges, which means your case will not be heard by a jury. The judge will be using the evidence you provide, family law rules, and laws to come to a decision.
Unlike in mediations where it is not mandatory to agree to the other sides’ proposal, where parties are free to reject the offer and leave, a decision will be reached in a trial by a judge. The decision made by the judge is binding. It does not matter whether you agree with the judge’s decision. The judge will be making a conclusive verdict about your case that will be enforced. At this point it is not about negotiating with your ex-partner, rather this is strictly law-based.
This could mean that the law is not necessarily on your side in terms of what you want. For example, you and your ex-spouse are planning to divorce, and you don’t want to sell the new house you recently bought. Maybe your ex-spouse is willing to let you keep the house in exchange for the vintage cars or the downtown apartment? Prior to trial you can negotiate with your ex-spouse and come to a mutual resolution that will satisfy you both. However, once this issue goes to trial, the law prevails, and the judge’s decision may not be what you want. It is best to discuss all available options with your lawyer prior to settling on going to trial.
There is a common misconception that going to trial will result in a clear loser and winner. This is untrue in the context of family law. Remember, the judge does not know you, your ex-partner, your children, or your situation personally. They can only make a decision based on the evidence that you present. Therefore, it is highly recommended that prior to going to trial both parties try alternatives dispute resolutions. Some alternatives to a full trial include judicial case conferences, settlement conferences, mediations, or offers to settle. In fact, less than 5% of all family law cases proceed to trial!
It is also important to consider the cost of going to trial. Trials can take up a large amount of time and drag out the litigation process. You will have to pay for your lawyer (if you are not self-represented), courts fees, photocopying, etc. This can amount to a significant amount of money. There is a general rule that a person who loses a case pays for the costs of the person who won the case. However, in family law that can become complicated. Sometimes no one gets their costs paid and sometimes a judge may order one person to pay for the costs of the other.
What does a family court trial look like?
This a formal process that requires certain steps and procedures. If you are represented by a lawyer, the lawyer will speak for you except when you testify. Usually, the trial begins with opening statements. The parties begin by explaining what the trial is about, what issues are before the judge, what position each party member has, how many witness’ will be testifying, and what each party is requesting.
Following the opening statements, the party who applied for the court order will testify and present their evidence and witnesses. The opposing party will have the opportunity to question the first party. After this step is completed, the roles will be reversed, and it will be the opposing parties turn to testify and present their evidence and witnesses. The party who applies for the court order will now have the chance to question the opposing party. The final step is closing submissions. Each party will have the opportunity to briefly summarize their arguments and positions explaining what they want and how the evidence supports this.
