by Ky M. Koch
In the course of my thirty-five years as a divorce lawyer, I have continually found that husbands and wives have a complete misconception about what happens in a divorce trial. As time goes by, I find myself spending more and more time describing to a client exactly what a trial is and what it is not. I also find myself more fervently dissuading my client from litigation of any sort.
Not only is litigation very expensive, it is extremely uncertain and time consuming. It is rare that a litigated divorce case of any significance will be resolved inside of a year. It is also possible that a result from a divorce trial will be appealed. The appellate process adds another year, a whole new layer of expense, and the uncertainty of whether or not the appellate court were to find an error that was committed by the trial court, which would result in an entirely new trial having to be held. That is the ultimate nightmare.
The Trial Process
- In Florida there are no jury trials in divorce cases. Your case is heard by a judge. That judge typically has over one thousand cases assigned to her or him.
- The judge will know almost nothing about your case until the trial begins. The law strictly limits what evidence and testimony the judge is allowed to hear. What you think is important may not be admissible evidence and the judge will never know about it. You should discuss this with your lawyer early and often.
- The expense of trial can be overwhelming. It has been my experience that for every hour of trial, an attorney must spend at least three hours in preparation. Preparation is vital. You want your attorney to know more about your case than anyone. So, if you have an eight-hour trial, twenty-four hours of work (3X8 hour length of trial = 24) is required to prepare. Thirty-two hours times your lawyer’s hourly rate will be, at a minimum, the additional cost of a trial. That is not to mention depositions, other hearings, and all of the things that make up the year prior to the actual trial itself.
- A judge is severely limited in what she or he can do resulting from a trial. There is significantly less flexibility accorded to a judge, than exists in a settlement context. In settlement, you can do many things that a judge cannot and will not consider.
What a Trial Is Not
- The judge is not going to find or determine whether the husband was right or the wife was right. The judge is not going to find whether the husband was at fault or the wife was at fault. These issues are not relevant by Florida law. The judge is not permitted to award financial relief, whether by distribution of assets, alimony, support, or otherwise, based solely upon fault.
- Very, very, rarely will a trial judge be interested or lawfully permitted to understand the emotions of the situation. Those emotions are often related to the question of “fault” which, again, are not relevant. In fact, quite the opposite can occur. If a judge believes that one of the litigants is driven by emotion, that litigant’s position may be weakened by virtue of a judge believing that the “facts” are tainted by the emotion and not supported in reality.
- A place for warring lawyers to settle the score. One of the worst things that could happen to you is for the two lawyers to dislike each other and want to show each other up in court. The case is not about the lawyers. The issues are between the husband and the wife. Distractions such as this are expensive, counter-productive, and devastating to future relationships between husbands and wives.
- The results of a trial are not predictable. Do not ever be misled by this ultimate truth. Especially in the world of family law, there is no such thing as a “sure winner.” Also, for you to comment that “I feel certain that the judge will see it my way,” is ill-conceived. It may be easy to delude yourself to that thought, but, with no experience in the family law arena, you should avoid any such conclusion.
The bottom line is this: a trial should always be a last resort. It is never what you think. There are huge risks and massive expenses that surround a trial. Keep in mind that your lawyer will make much more money going to trial than in settling your case. Thus, listen very carefully when your lawyer gives you advice regarding a settlement. You have hired them for their experience and expertise and to guide you through this difficult process.