Divorce Court: Motions & Trials

Part two of two of "If You Have to Go to Divorce Court". Learn the basics of mortions and trials in divorce court.

There are two types of legal actions that may bring your case into court: motions and trials.

Motions can be made either before or after a trial. Motions before a trial are usually made by a party to obtain the security of a court order that will govern some aspect of the parties’ relations until the time of trial, as described below. Motions after trial are made to modify or enforce the orders already in place.

The trial itself is normally the most important event in the case and, depending on its complexity, may last anywhere from ten minutes to several months. After hearing the evidence produced by the parties at trial, the judge will decide any issues the parties have not been able to resolve on their own.

Pretrial Motions

Many divorces involve issues that require at least a temporary resolution between the time the case is filed and a trial is held. If you and your spouse agree on all of the short range issues listed below, there won’t be any pretrial motions. If you don’t agree and need some action before the court is ready to give you a trial, either one of you can file a motion to get what is usually an order that will only last until the time of total settlement or trial.

Pretrial motions are used to resolve a number of issues, including:

  • money—how much one spouse should be required to pay to the other for child support or alimony pending the trial
  • custody—how much time children should spend with each of the parents, where they should go to school, and the scheduling for special events such as birthdays and holidays
  • possessions—who should occupy the family house or apartment (sometimes both spouses do, usually in separate bedrooms), who has control of any vehicles, and, if any property must be sold to produce cash, who should control the sale and how the proceeds should be handled
  • protection orders—if there has been violence between the spouses, communications may be limited and restraining orders may be issued, and
  • enforcement—if an order made at trial has been violated, a motion may be filed to determine if the offending party should be punished. There is sometimes a need to enforce pretrial orders, too—such as an order for temporary support at trial. Many people work out some temporary answer to these problems voluntarily, but if that isn’t happening, the court can only become involved if a pretrial motion is filed.

If you don’t have a lawyer, a self-help center can normally help you prepare the motion, provide instructions on where to file it with the court, and tell you how to obtain a hearing date.

Pretrial motions will normally be heard by a judge who handles a group of similar cases at designated times each week. At the hearing, you will be expected to explain to the court why you need or oppose a pretrial order and, if relevant, to establish your own or your spouse’s income. After the judge has ruled, the court may prepare an order reflecting the decision or may require you to prepare one for the judge to sign, making it legally enforceable.

Trials

There are two types of divorce trials: simple uncontested ones in which the spouses agree on all the terms of the divorce, and contested trials in which they disagree on some, or sometimes all, of the issues involved.

Uncontested divorces

Trials in uncontested divorces can usually be handled fairly easily by the spouses on their own without a lawyer’s involvement. In some states, they can be handled by mail. Simplified procedures of this type are normally outlined in the local rules of your court—and some courts publish their rules on a website. Selfhelp agencies can also help make the best use of local procedures.

Where a personal appearance is necessary, the trial will usually take just a few minutes. In some cases, the judge will ask the necessary questions, which are described below—and all you have to do is say “Yes” several times—or perhaps “Yes, Your Honor.”

Depending on your state, the person actually filing the divorce is referred to as the “petitioner,” “plaintiff,” or “complainant” and the other spouse is the “respondent or “defendant.” In many cases, this is a legal fiction of sorts, since both spouses are anxious to get on with the process. But these are just legalistic labels to differentiate the parties.

You normally start by establishing your residence in the county and the length of your marriage: “I have lived in the state of _____ for (the time required in your state) and in the county of _________ for ___ months. We were married (date).”

You then must state some magic words establishing the state’s acceptable reasons for the divorce. The required words vary from state to state, but they are easy to discover. You can find them out by visiting your courtroom when similar hearings are held sometime before your hearing date. You can also find them by going to Divorce Basics, and then the name of your state.  

In this example, the magic words you would need to tell the judge might be: “My spouse and I have irreconcilable differences which have caused the irremediable breakdown of the marriage.” Or put a little less legalistically: “My spouse and I have had important differences that we cannot resolve and we believe that our marriage has permanently broken down.”

Finally, hand the clerk any written settlement agreement that a lawyer or an Internet service has prepared for you or that you and your spouse prepared together. If only one of you is present in court, the other person should sign the agreement in front of a notary. Make a simple statement to the judge explaining the contents of the agreement, such as: “My spouse and I have agreed on the terms for our divorce as set forth in this agreement regarding support, custody of our children, and division of our property, and we request the court adopt it as part of our judgment of divorce.” That should do it for an uncontested divorce.

Contested Divorces

By contrast, contested divorces—in which very little is agreed upon—are much trickier to navigate. In addition to complying with the complicated state laws controlling the issues in a divorce, you must also abide by the laws of evidence that control the types of testimony that are acceptable in court.

If your case is headed for a contested trial, the court will probably schedule a settlement conference before a mediator or judge with the hope of resolving some or all of the disputed issues. Some courts will automatically give you a date for a conference with a judge to check out settlement possibilities and to assign a trial date. Others require you to file a form requesting that the case be moved to trial. Check with your local clerk’s office to see what procedure it follows.

Dates for contested trials are normally assigned at least a month in advance of the trial. The gap in time from when your case is filed at the clerk’s office and when your trial begins will vary, depending on how busy the court is and how complicated your case appears to be. Some courts get a contested case to trial within 90 days of filing; others have such a backlog of cases waiting for trial that some cases are still not tried a year after they are filed.

CONSULT AN EXPERT

Contested divorces may require a lawyer’s help. I have seen a few couples put on contested divorce trials without serious problems, but they have been rare. If you have come this far without a lawyer, consider getting some specialized information from a lawyer for this step.

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