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The Divorce Encyclopedia
Trial; Hearing on the Merits; Evidentiary Hearing


Term Definition Trial; Hearing on the Merits; Evidentiary Hearing - a formal court hearing, conducted under the rules of evidence, to decide the disputed issues filed in the complaint or summons.
Application in Divorce Contested divorces that cannot be resolved by mediation, arbitration or collaborative law end in trials.

In divorce trials, the disputed issues usually are 1) child custody and visitation, 2) property division, and 3) support issues.

In general in divorce actions, like all civil trials, the routine begins with opening statements, then the petitioner presents evidence and testimony. The respondent, in turn, presents his or her case, evidence and testimony. This may be followed by the petitioner’s rebuttal and the respondent’s sur-rebuttal. In contested custody cases, a child’s lawyer or custody evaluator may testify about the family situation. Both sides present their claims about disputed financial matters. In the end, both sides make closing arguments.

During the stages of the trial, the lawyers for the plaintiff and defendant conduct direct, redirect, cross-examinations of witnesses as part of the presentation of the case and the defense against it. Cross-examination normally follows by the adverse party, and redirect examination follows by the party who first called the witness. These examinations -- direct, cross- and redirect -- are part of the process by which a jury ascertains the facts.

Almost all divorce trials are bench trials, which means they are heard without a jury. When it is over, the case is "under submission," which means after consideration the judge comes to a decision and judgment. Most divorce trials last a day or two.

On television and in movies, trials, civil and criminal, are portrayed as dramatic events; in real life, they are slow moving, and they are often punctuated by sidebar conferences and sometimes postponements. The late Learned Hand, a distinguished federal appeals court judge, once said that after death, serious illness or injury the thing he would most seek to avoid in his life is being party to litigation.

Unlike other court actions, a divorce trial is probably the only form of litigation where the parties have at one time seen each other naked and in bed. The parties, who have once made love to each other, understandably find it hard not to take things personally. This fact goes miles in explanation why divorce trials become so acrimonious and make virtually certain that the parties will develop a deep and abiding hatred of one another, which, in turn, makes divorced parenting, already a difficult undertaking, even more so.

After hours, lawyers who specialize in divorce laugh about it all at the bar and swap war stories about the wild, crazy and self-destructive actions of their clients. The popular movie The War of the Roses depicts just how out of control divorce warfare can become.

When it is all over, decisions are final and made with prejudice, but the peace that follows the divorce warfare of a trial can be as bad as the war.

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