One of the most-asked questions regarding divorce trials in New York is “Do I have the right to a trial by jury?” The answer is, as attorneys love to say, “yes and no”. While you may have a jury trial concerning the grounds of divorce (and the judicial departments in the State of New York are split when it comes to whether any trial is allowed for a “no fault” divorce”), you may not have a jury trial on the equitable matters (basically custody, child support spousal support, equitable distribution). For a discussion of the right to a jury trial on the grounds of “no fault” divorce, click here.
If you ask any divorce attorney what percentage of divorce cases actually go to trial, you will get answers ranging from 95% to 99.9%. A trial over custody, support and assets is an aberration. No two people ever want one person, the judge, deciding their futures when it comes to their children and money. It is a rational and sane choice. That is not to say that anyone who takes a divorce case to trial is “insane”. On the contrary, there are many reasons why a case should go to trial: a new twist on an old law for which there is no legal guidance to make a fair settlement from; the parties are so far apart on their settlement proposals that no meaningful negotiations can actually take place and only judicial experience (that is, unless you get a judge that is clueless and, believe me, they are out there); or one or both parties MUST have their day in Court and will not be satisfied without having their voice heard on the witness stand. A good attorney will attempt to talk their client out of wanting to air their grievances at a trial just to feel vindicated as, the decision they receive from the judge may be quite the opposite of the vindication they sought.
Unless the parties are working with a big budget, most parties anticipate the expense of going to trial and realize the money therefor would be better spent on their children’s college funds. Many people ask why a trial is so expensive. To answer that, I am going to “briefly” summarize what attorneys must do to prepare for a divorce trial. of course, this does not include actual research, witness preparation and rehearsals.
The list below is not all-inclusive but merely a list of what most judges require from attorneys and parties prior to the first day of trial.
1. Note of Issue and Certificate of Readiness filed within 30 days after certifying the case for trial.
2. Usually, approximately 30 days prior to trial, the attorneys must submit fully completed worksheets regarding the statutory criteria relating to maintenance and equitable distribution sworn to by each party.
3. An accounting of any claimed pendente lite arrears supported by backup documentation;
4. Statements of Proposed Disposition: this is a document submitted that contains legal references for the Court to review regarding the parties’ positions as to how they wish the Judge to ultimately decide the case;
5. “Cash flow” charts: a document setting forth each parties’ proposals for how an income-making asset should be apportioned for the payment of a distributive award as well as other obligations such as maintenance, child support, income taxes and interest on payments;
6. A list of all exhibits for each party indicating whether such exhibits are stipulated to be in evidence or marked for identification.
7. Trial Notebooks: This is a guidebook for the Court and the opposing attorney as to which exhibits will be used at trial. This is a vital step in preparing for trial and, as such, is time-consuming.
8. Witness list: This is a guide for the Court and opposing attorney as to which witnesses you will likely call at trial, the order in which you will call them, what topics they will cover and approximately how long they will be on the witness stand for;
9. Expert witness list;
10. An updated Net Worth Affidavit;
11. Meeting with the Court reporter to “pre-mark” all exhibits and deterring which exhibits the attorneys will agree will come in as evidence without objection;
12. All deposition transcripts “pre-marked”;
13. Drafting and submission of any Motions In Limine which is a fancy way of asking the Court to exclude some evidence that the other side hopes to introduce at trial;
14. Witness preparation;
15. Drafting of Opening Arguments;
In most Courts, trials continue day-to-day (per the Court’s schedule) until both sides have rested their cases. This can be as short as one day or take weeks. However, most Courts do not make it easy for you to even begin a trial. Most Judges will force you to at least spend the entire morning attempting to settle the matter one last time. If there is no settlement by lunchtime, expect to begin the trial after lunch (if you even have an appetite by then).
On the scheduled date of trial:
1. Submission of a statement of stipulated facts and/or exhibits. Counsel are urged to stipulate that any issue relating to an award of counsel and expert fees be resolved by the Court, without testimony, upon the submission of affirmations and other appropriate documentation from counsel;
2. Submission of marked pleadings;
3. Submission of copies of life insurance policies and medical and dental policies of insurance in effect as of the date of the commencement of the action and as of the present date;
4. A list of issues to be determined by the Court including any pretrial motion issues referred to the trial by the Court;
5. Submission of all relevant orders issued by the Court or any another court;
6. Plaintiff begins the trial with their case. They will put witnesses on the witness stand and question them—this is termed “direct examination”. Once their attorney has finished questioning their witness, the other attorney questions them—this is termed “cross examination”
7. Once the Plaintiff has “rested”, the Defendant puts their case on in the same manner as Plaintiff;
8. Once both the Plaintiff and Defendant has “rested” their cases, the Judge can either hear Closing Arguments or direct them to be written and submitted to the Court. This will usually include: a chronological procedural history of the action; a recitation of the issues to be determined; an in depth summary of the testimony of each witness; a summary of the findings of any expert report received in evidence; a summary of the exhibits in evidence; a detailed recitation of counsel’s contentions as to the testimony and exhibits in evidence; and applicable law.
1. Post-trial Memoranda of Law within thirty days of the conclusion of trial (this is normally in the range of 25 pages long);
2. Proposed Findings of Fact and Conclusions of Law within thirty (30) days of the conclusion of trial. This serves as a guidebook from each attorney as to which facts and conclusions the Judge should draw from all the evidence heard at trial pursuant to the applicable law;
3. Submission of any Motions for attorney fees.
The decision to take a case to trial should not be entered into lightly. The sheer amount of intense planning and preparation involved in readying the case for trial is emotionally and financially draining for the party. However, if your case is going to trial, we will be by your side the entire time, holding your hand with our left and “punching” the other side with our right!