SERIES: YOUR DIVORCE WILL NOT SETTLE, SO THE JUDGE ASSIGNS YOU TO TRIAL
There are certain cases that I get every year in which the parties are so intransient and emotionally dug in, that the divorce will not settle. These are the cases that usually involve one of the following: sole physical and/or sole legal custody of the children; right to remove the children permanently to another state or country; significant valuation issues of marital assets and/or inherited assets. This is not an exhaustive list of “line in the sand” cases that can only be decided after trial, but these areas of controversy often end up at trial. These are the cases where alternative dispute resolution [Mediation v. Litigation] has failed. These are the cases where the parties need to purge, to have their day in court, to have their catharsis.
QUESTION 1: So the first question asked is: What is a trial?
A trial in the Probate court in Massachusetts is not tantamount to a reality show, such as Judge Judy or Divorce Court. It is not an operatic performance which will culminate in the judge issuing edicts from the bench and meting out punishment against the offending party. Rather, the purpose of a trial is to provide both parties the opportunity to testify about the issues at hand, and offer evidence through other witnesses and exhibits. A decision following a trial can take weeks, or more likely, it can take months. In one case that I was involved with, the decision after trial did not issue for over two years.
In Massachusetts, a single judge hears the testimony and considers the evidence at trial. In other words, there is no jury trial in a divorce. Your case ordinarily will take one full day where the judge has uninterrupted time to hear your case. There are cases, however, which require multiple days. In the instance where multiple days are required, those trial days will be consecutive if you are very lucky. In one extremely contentious case that I tried, the court required ten trial days to hear testimony and consider evidence. The trial ended seven months after it began because the trial days were not consecutive.
Part of being prepared for trial means being prepared to wait. Which begs the question, how does one prepare for trial? I will talk about this in my next blog.
PhilipJByers
Philip J. Byers, Attorney 