At Ciyou & Dixon, P.C., we observe three (3) fundamental misunderstandings many divorce litigants share about trials. Understanding these myths or exceptions should empower you to anticipate them and not get misguided and more frustrated than you already may be about a divorce. We hope this helps you in some small way as you educate yourself about divorce.
You Probably Won’t Get a Decision that Day.
A widespread, but nevertheless incorrect, view is the parties will leave a divorce trial divorced and the issues decided–case closed. In cases that have been pending a long time, some for two or more years, a trial court judge may “divorce” the parties at the end of the trial.
This legally does several things, such as start the time running for a spouse to get COBRA coverage. Emotionally, it frees the parties from the label of “married”, which may be significant for reasons relating to religion or the desire to re-marry. Typically, it allows at least the petitioning spouse to begin closure.
However, the division of assets and liabilities and custody issues may not be decided by an order for several weeks or a few months. This is “normal” and with a little thought, should make sense to you. Likely, the marriage was years in the making. Judges want to reflect and consider the evidence they have heard to make a fair decision. They court just heard the evidence the day of trial.
Also, a number of legal matters may still yet need to occur before the judge issues a decision. For example, the court may provide the parties with an opportunity to a post-trial brief on unique, complex, or novel legal issues a case presents. These take a few days to several for the parties’ counsels to research and draft.
A quite common reason the divorce decree and decision of the court may not be decided for several weeks is special findings. This is nothing more than a detailed written order setting forth the rationale of the trial court’s division of assets and custody decision. Usually, courts allow the parties to submit proposed findings–what evidence to value over other evidence–to decide the case under the law.
These take several hours to prepare. For this reason, courts frequently allow parties two (2) to four (4) weeks to do so. By the trial rules, the court then has ninety (90) days to prepare its own version; usually these are a combination of both sets of proposed findings.
Thus, you will not likely leave the divorce proceeding with all issues decided. However, this is a good thing in order to unwind a complex matter.
A Jury Won’t Decide Your Case and it May not Be Heard by the Elected Judge.
Under Indiana law, there is no right to a jury trial in divorce litigation. In fact, while this right exists in most serious criminal cases and other civil matters, jury trials are actually very rare. These trials account for a statistically insignificant number of cases each year relative to overall cases pending. They are expensive and time consuming.
In addition, it is common for a commissioner, magistrate or judge pro tempore to hear divorce cases. There is a right to have the elected judge hear the case, but it must be asked for at the time a case is filed. The fact that another person, always an attorney, may hear and decide a case is not a negative. It reflects the reality that judges have more work and less time, and divorce cases account for half of civil litigation.
For the most part, the elected judge has a pulse on his or her commissioner, magistrate or judge pro tempore and closely oversees their handling of cases. A litigant should nevertheless be aware of this or else it might be unsettling. The last thing an attorney wants is to have this surprise you and impact your ability to testify.
Like not being divorced and having your case over on the day the trial concludes, not having your divorce heard by the elected judge is a legal norm not an exception. Anticipating it is the key to being prepared and being a game-day player. In a small number of cases, even your attorney may not learn of this until the time of trial.
You Don’t Win or Lose.
The biggest myth or fallacy about “going to trial” or “trying it” in domestic cases is that there are winners or losers. In fact, winning or losing is terminology foreign to divorce lawyers and courts. The reality should be self-apparent. Even with the most agreeable divorce litigants, the fact is it costs more to run two (2) households.
A court cannot change this fact, and this is the good news. In most cases, there are far greater problems; right now it is the marital residence that is “under water.” Neither party may want this home. Or both may desire to maintain it to strengthen their respective custody positions.
The crux may be neither can afford this home individually. The Court may award it, but cannot undo the mortgage. This holds both parties back. The spouse awarded this home may be in denial of reality and kept from moving on by considering where he or she will live later. For the spouse who is not awarded this home, he or she remains on the mortgage. This is bad even if the other spouse diligently pays on the mortgage-this debt factors into the other’s ability to purchase a home and move on.
Fortunately, property divisions are final and rarely wind up back in court. Where the parties have children, the inability to “win” or “lose” may well play itself over and over throughout the ensuing years. If one parent wants to be back in court, in the name of the children or for some other unsaid reason, that will be the case.
Ciyou & Dixon, P.C. advocates hope these three (3) “surprises” about a divorce trial help you accept the process, time it takes, and focus on productive matters, not unrealistic matters. If so, this blog post has done its job. Ciyou & Dixon, P.C. advocates practice throughout the State Indiana.