What Happens If We Go to Court to Divorce?

Learn when you might need to go to court in your divorce and what to expect at a hearing or trial.

Updated by , Legal Editor

Any time you're involved in a legal case that will end up in court, you're bound to be at least somewhat worried. After all, you can never predict the outcome—that's up to the individual judge. But it helps to know how the different kinds of divorce hearings and trials work—and when you can get divorced without having to go to court.

When Will You Need To Go to Trial in Your Divorce?

The first thing to understand about divorce trials is that they're rare. Surveys consistently show that the vast majority of divorce cases—between 90 and 95%—are settled out of court. There will be no need for a trial in your divorce if you and your spouse can sign a divorce settlement agreement that resolves all the legal issues involved in ending your marriage, including:

Some couples reach a comprehensive agreement before they file for divorce, which then allows them to take advantage of the time- and cost-saving benefits of an uncontested divorce. Other couples start with a contested divorce but settle their case later in the process, even as late as the day of the trial. Either way, a comprehensive settlement means they won't need to go to trial, although they might have to appear in court for a brief hearing (more on that below).

However, if you and your spouse can't agree about any of the issues in your divorce, you'll have to go to trial to have a judge resolve those disputes.

Different Kinds of Divorce Hearings

Even if you don't end up going to trial in your divorce, you may still have to appear in court for one of the other types of divorce hearings.

Hearings on Pretrial Motions

Contested divorces can take a long time—from several months to even years. In the meantime, you'll probably need to get temporary orders on issues such as child support, custody and a parenting schedule, spousal support, and which spouse will stay in the family home during the divorce proceedings. Unless you can agree on these issues, you or your spouse will file a legal request (often called a "motion for an order to show cause") for a temporary order. The other spouse may file a response to your motion.

Both spouses (and their lawyers) will then appear in court at a short hearing (sometimes called a "short cause" or "law and motion" hearing) and explain why they're requesting or opposing the temporary orders. Your testimony might be in the form of a signed statement. After the judge has ruled, the court may prepare an order reflecting that decision or may require one of the spouse's attorneys to prepare an order for the judge to sign.

You might also need to attend a pretrial "show cause" hearing to resolve any disputes that come up during your divorce, such as a spouse's failure to obey temporary orders or to respond to discovery requests (more on that below).

Uncontested Divorce Hearings

You won't need a trial if you and your spouse have managed to reach a settlement agreement about all of the issues in your divorce. However, depending on the laws or court rules in your state, you may have to appear in court for a short hearing before your divorce is final.

At this hearing, the judge will review your agreement and other paperwork. The judge may ask you some questions to make sure you understand it, weren't pressured into signing it, and meet the divorce requirements in your state. Typically, the judge will approve your settlement agreement unless:

In some states (or counties), you won't have to appear for a final hearing in uncontested divorces. You'll simply submit your agreement and other paperwork for the judge's review and approval.

If the judge finds any problems with your paperwork, you might need to submit revised documents—or even go back to the negotiating table if the judge hasn't approved any part of your settlement. Otherwise, the judge will make your agreement part of an official divorce decree or judgment.

Post-Divorce Motions and Hearings

Even after your divorce is final, you may need to attend further hearings on disputes such as:

But when it comes to enforcing or modifying child support, you can get help from the child support enforcement agency in your region. Otherwise, you will probably need a lawyer's help with contested post-divorce proceedings to modify or enforce alimony or custody.

What Happens Before a Divorce Trial?

Several of the steps in a contested divorce take place before a trial, including pretrial motions and hearings (discussed above), evidence gathering, and settlement negotiations.

What Is Discovery in a Divorce Case?

In a divorce, "discovery" is the legal process spouses can use to get information from each other before a trial.

Even before discovery starts, however, most states require both spouses to exchange detailed information about their finances, including income, retirement accounts or pensions, other assets, debts, and other liabilities (such as obligations to pay support to children or spouses from previous marriages). Generally, they must sign these disclosures under oath, declaring that the information is complete and accurate to the best of their knowledge. They also may have to include supporting documents and file the declarations with the court.

If you didn't get enough information in the mandatory financial disclosures—or if you suspect that your spouse wasn't entirely forthcoming or is hiding assets—you can make formal requests for more information during any or all of the following discovery methods:

  • Interrogatories. You may submit written questions to your spouse, who then must respond in writing (or object to the questions) within a certain time.
  • Demands for production or inspection. You can ask your spouse for copies of financial records or for access to inspect electronic records or physical things like a safe deposit box or art collection.
  • Subpoenas. You may use subpoenas to get information and documents from others who aren't directly involved in your divorce, such as financial institutions where you suspect your spouse has an unrevealed account.
  • Depositions. You can ask your spouse to appear and answer questions related to your divorce. You could also use a deposition to question other witnesses and experts involved in the case (more on that below). Depositions usually take place in a lawyer's office, but the deposition testimony is under oath, will be recorded by a court reporter, and may be used in a later trial.

Getting Expert Opinions on Divorce Disputes

You may get help from experts to investigate certain issues in your divorce and prepare reports on the results. Their reports may be introduced as evidence at trial. An expert may also be asked to answer questions in a deposition or at trial.

Some of the experts used in divorces include:

  • custody evaluators
  • appraisers and other valuation experts who can determine the accurate value of assets like real estate, businesses, and professional practices
  • vocational evaluators who can offer an opinion on a dependent spouse's earning capacity and ability to become self-supporting, and
  • forensic accountants, to conduct asset searches.

When it's appropriate, the judge may appoint a custody or vocational evaluator. Even then, you and your spouse may each hire your own experts. Judges don't have to accept the opinions of experts, but they will consider them—and weigh any differing opinions if more than one expert has reported on the same issue.

Settlement Negotiations and Mediation During Divorce

Even in contested divorces, settlement negotiations usually take place along the way—typically by both spouses' lawyers. For instance, once more information has come to light through the discovery process, you or your spouse might be more willing to compromise.

Settlement negotiations usually happen like this: One lawyer sends the other lawyer a settlement proposal after discussing it with the client. The other lawyer and spouse look over the proposal and accept it, suggest changes, or reject it outright. This back-and-forth process may be repeated several times until both sides are happy with the agreement.

If your attorneys think it would help, they might suggest mediation of any sticking points. Some courts may require you to participate in some form of mediation in your divorce, either shortly after you file a contested divorce or before you go to trial.

Preparation for Testimony

Your lawyer will help you and your witnesses prepare for testifying at trial, including what questions to expect, how you should answer, and what you don't need to say.

Depending on state law and court practices regarding children's testimony about their custody preferences, your attorney may need to help prepare your child for that experience (without coaching the child to give any particular answers). The lawyer may also ask the judge to question the child in chambers rather than in the formal (and intimidating) court setting.

Pretrial Conferences

Before a trial in your divorce, you and your spouse (and your lawyers) will usually have to attend a pretrial conference with the judge to discuss trial planning, including dates, the contested issues to be decided, how long the trial may take, the witnesses who are expected to appear, and the other evidence each side intends to introduce at trial.

At the pretrial conference, the judge may set a date for a mandatory settlement conference—a last-ditch effort to settle with the help of a different judge or mediator.

What To Expect at a Divorce Trial

If your case is one of the very few divorces that will go all the way to a trial on one or more unresolved issues, your attorney will prepare you for your day in court and represent you at the trial. Still, it can help to have a basic idea of what happens at divorce trials.

Will There Be a Jury at Your Divorce Trial?

Almost all divorce trials are held before a judge, not a jury. In the United States, only Texas and Georgia allow either spouse to request a jury trial. But even in those states, there are limits on which issues the jury may decide. In Texas, for instance, juries may not make decisions about child support or certain conditions related to "possessory conservatorship" (physical custody). (Tex. Fam. Code § 105.002(c)(2) (2024).)

Opening Statements

The lawyers for both spouses will start by telling the judge what they're asking for and what the evidence will show. In divorces, these statements are usually brief and to the point.

Evidence and Testimony

The lawyer for the spouse who filed for divorce (usually known as the petitioner) will begin presenting evidence, by submitting documents and having witnesses testify. The other spouse's lawyer will be able to cross-examine those witnesses.

The other spouse's lawyer will then have the opportunity to do the same thing: introduce evidence and call witnesses. Again, the petitioner's attorney may cross-examine those witnesses. Further testimony may follow to contradict (rebut) what previous witnesses said.

In addition to the spouses, witnesses might include:

  • experts such as custody evaluators, vocational evaluators, or financial appraisers (as discussed above)
  • friends or family members who've observed things that could shed light on the disputed issues, such as how much one parent has been involved in caregiving or other aspects of the child's life
  • your child's guardian ad litem (if one has been appointed), and
  • teachers or other professionals who can testify about the child's educational, medical, or other special needs.

To save time, some judges may ask for testimony in writing, in the form of a sworn declaration. Then, at the trial, the lawyers may simply ask the witness questions about the declaration.

Closing Arguments

After all the evidence has been presented and the testimony has been heard, lawyers for both spouses will sum up their cases to the judge. Some judges may ask for closing arguments in writing, especially if the case involves complicated legal issues or the trial has taken a long time.

The Judge's Ruling

After the trial is over, the judge will usually take time to consider the evidence and review the legal arguments before preparing a written ruling. The judge will then ask one of the lawyers to prepare another document (an "order" or "decree") that sets out the judge's rulings and orders, along with any other issues that you and your spouse agreed to outside of the trial. This document explains each spouse's rights and responsibilities after the divorce is final. The other lawyer will review the proposed decree and might request changes to some details. Eventually, the judge will approve and sign the final version.

Once the court issues the final decree, you will be divorced. Both you and your ex will be legally obligated to follow the orders—that is unless one of you successfully appeals.

How Long Does a Divorce Trial Take?

Various factors will determine how much time your divorce trial will take, especially:

  • how many issues the judge needs to resolve (in other words, whether you and your spouse were able to agree on some or most of the issues in your case)
  • how complicated your legal and financial issues are (the more complicated they are, the more witnesses and evidence you'll need to present), and
  • whether the judge needs to break up the trial and schedule the different parts over time—which could mean the trial spreads over several weeks or months.

Do You Need a Lawyer for a Divorce Hearing or Trial?

There are some circumstances when you can handle your own divorce. But that's not the case if you'll need a hearing or trial in a contested divorce. It takes an experienced family law attorney to understand all of the relevant laws, court procedures, and rules of evidence, as well as to gather convincing evidence and present a strong case to a judge.

If hiring a lawyer seems impossible on your budget, divorce mediation is a more affordable option. But if mediation doesn't work or isn't appropriate in your case (such as when there's been domestic violence), it's almost always a serious mistake to think that you can go it alone in a trial—particularly when your spouse has a lawyer.

It might help to know that some states allow judges to require one spouse to pay the other's attorney's fees in certain situations. When you're meeting with prospective attorneys, you can ask about that possibility, along with the other important questions to ask before hiring a divorce lawyer.

(Portions of this article were adapted from Nolo's Essential Guide to Divorce, by Emily Doskow.)