Our discussion of California divorce trials start with a fact. Many divorce lawyers don’t know what they are doing in a trial. They don’t know the rules of evidence as well as they should. They proceed unprepared.
California divorce trials are not something a lawyer should ever “wing.” There is often too much at stake. Knowledge of the law, a clear understanding of the facts and evidence the lawyer wishes to use, how to do it and clearly defined goals are the key to success. California divorce trials also need realistic expectations. Frivolous claims, those without factual or legal support, may expose the spouse pursuing it to sanctions.
That brings us to why we write this and why you are here. We don’t write this article for lawyers. We write it for you, the husband or wife, the one who wants to know helpful information about divorce trials. We hope you enjoy it and please share your comments with us.
Nothing in this article is legal advice or intended to apply to your specific situation. Legal advice only comes after retention of an attorney who is familiar with the specific facts of your situation and case.
After you are done with this article, we also suggest you read our guide on the 10 step California divorce process, which is written in a comprehensive FAQ style.
Is it better to settle your divorce or go to trial?
Settlement is always ideal in a divorce right? Not exactly. A fair settlement is ideal and a fair settlement is one consistent with the law and facts. When a fair settlement cannot be reached, some or all the divorce issues go to trial. What do we mean by “some” or “all?” Simple. It doesn’t have to be “all of the issues settle or none of them do.” Do you know we have actually seen the other spouse and his or her lawyer take such positions? It’s pretty foolish and a good way to upset the judge and make his or her issuance of sanctions against that spouse an easy decision.
Are divorce trials public?
Yes. Anyone can attend and sit in your divorce trial. For those who are concerned about privacy, there is a little bit of solace in choosing and paying for a private judge. That may not help much because even private divorce cases are open to the public although it is far more rare for someone to just show up to an office building where private divorces are held.
Private judges are typically former public judges with family law experience. Certain high asset cases or those too much in the public eye go to a private judge. What does a private California divorce trial involve? We have written an article about using private judges in family law cases. Check it out.
For everyone else, there is the normal and public divorce trial – a judge, no jury and each spouse in a place to advocate his or her perspective through the facts and law.
Is there a divorce pretrial procedure?
Most California counties have some sort of “pretrial” conference. The purpose of the conference is to make sure the spouses are ready for trial. Pretrial conferences can also be used to set up ground rules for the trial including exchange of trial documents.
Orange County’s divorce pretrial procedure
Orange County family court is unique in its procedure. One spouse typically files an “at issue memorandum.” This document tells the judge that the filing spouse thinks the case is ready for trial. Once filed, the Orange County Family Court will set a “trial setting conference.” At this conference, the judge will decide if the case really is ready for trial. Most judges will then set a “mandatory settlement conference.” This is a conference at the courthouse. Both sides show up with their lawyers and they expected to make a real effort at settling the divorce. If they cannot, the judge will set a trial date. Most divorce trials in California are set between 60-150 days away, depending on that particular judge’s calendar.
What we wrote doesn’t apply to every case. Judges will sometimes follow a difference procedure, custom-made for a particular case.
Do you need an attorney for a divorce trial?
If you intend to represent yourself in your California divorce trial, you are not making a smart decision. If you intend to represent yourself against your spouse who has a lawyer, you are playing the role of the fool. If your spouse has the money to hire a lawyer and you don’t, it’s time to think about an attorney fee motion against your spouse. California family law creates financial balance so neither spouse can unreasonably outspend the other.
Can a California divorce trial get delayed after it is set?
The longer the divorce trial, the harder it is for a judge or even an entire county family court to find a home for it. In Orange County, a trial of 5 hours or less is “short cause.” Get longer than 5 hours and the divorce case flirts with “long cause” status. Divorce trials that go one or more days are sometimes set during consecutive days but often spread out over a week or more. We have had multi day divorce trials spread over many weeks. As I write this, one of our divorce trial’s custody part is on its 15th afternoon…and that is just child custody.
Delays are not uncommon in California divorce trials. “Not uncommon” is a funny way of saying it but it’s not really fair to say “common” because there are many divorce trials that start on time. Still, because many family law judges juggle other matters on the same day they set trials, getting a full day is tough.
What is a trial time estimate?
We touched on this before but let’s go through this in a little more detail.
A judge will want to know the length of a trial before he or she sets it. This is a “time estimate.”
Smart lawyers estimate a little on the higher end because judges get upset when you estimate a certain amount of hours or days and you trial goes a lot longer than those hours or days, although that is sometimes inevitable.
If child custody and child support, alimony, property division and mid to high assets all go to trial, the chances of finishing that trial in less than a day is uncommon. The more complex the issues going to trial, the longer the trial. That is because such trials have more documents and more witnesses. When you add expert witnesses (like forensic accountants, appraisers, etc.) or there are private child custody evaluators involved, the trial becomes even more complicated.
California Divorce trial statutes and court rules
There are several rules in play for a California divorce trial. The first are California statutes. These are “code” books like the Family Code, Code of Civil Procedure, Evidence Code, etc. The second are California Rules of Court. These “Rules” will either piggyback on the “code” or have their own procedural guidelines. Then you have “local” rules. Local rules are those of the specific county. For example, Orange County’s 2014 Family Law Local Rules specifically lay out specific rules lawyers must follow. Think we’re done? Nope, not yet. Believe it or not, even the judges sometimes have their own department rules.
Do you now see why it’s not wise to represent yourself?
Do divorce trials have juries?
California divorce trials generally don’t have juries. Thank goodness for that. The last thing we need in family court is 12 licensed drivers and strangers trying to figure out child custody, support and property issues.
What are Orange County’s divorce trial rules?
Orange County Local Rule 709 lays out some of the O.C. rules that apply to family law trials. Here are parts of Rule 709 that you may find helpful. We are quoting from the Rule but we have broken up the paragraphs for easier reference:
- A short cause trial/hearing is one that will not exceed five hours, including motions in limine, opening statements, closing arguments, and issuance of a ruling.
- A long cause trial is one that requires more than five hours.
- The call of the trial calendar will commence promptly on the date and time set by the trial court in the department to which the case is assigned.
- The parties and their attorneys must report ready and prepared to commence trial.
- Prior to the commencement of any trial or hearing, the judicial officer must require the parties to give a reasonable and good faith estimate of the probable length of the trial, including the presentation of all evidence and closing arguments.
- Where necessitated by the court’s calendar, the assigned judicial officer may refer cases to the Family Law Supervising Judge for assignment to other departments for trial.
- The parties must file a joint statement of issues to be tried at least five court days prior to the trial or hearing date. A delay caused by the absence of current Income and Expense Declarations may subject parties or their attorneys to sanctions.
- Each party must pay the statutory court reporter fee for any court hearing over one hour. It is the duty of the parties to know the amount of the fee before the day of hearing and to pay said amount by cash, credit card or check before the end of the court day.
California Divorce trial questions
Lawyers have different styles. Some lawyers write out all of their questions. Others use a less detailed format. No matter what the style, knowing and having the specific topics and/or questions is a big part of trial preparation. In our law firm, we use a specific format to not only lay out the trial questions but, as one example, areas where we think the person testifying will likely attempt to lie and be impeached. We have developed our method over years of divorce trial experience.
Will my spouse have to testify?
Your spouse will likely have to testify. If he or she does not, what is really in dispute and why are you going to trial? Your lawyer should plan out your spouse’s testimony with you including exhibits, covered topics, party and witness questions and areas to impeach your spouse.
What kinds of witnesses testify in a California divorce trial?
There are all types of witnesses in a California divorce trial. Let’s go through the different kinds.
Lay witnesses: The word lay witnesses means those that will not offer any expert opinions. Most lay witnesses don’t give any opinions but rather testify about their relevant personal knowledge of the facts. These can include family or friends, teachers, neighbors and more.
Expert witnesses: There are different types of experts. First, there are court appointed experts. These are typically forensic accountants or private child custody evaluators. There are also privately retained experts. These can also be forensic accountants hired by each spouse to conduct a controllable cash flow (income for support purposes) calculation, business valuation or tracing of community or separate property assets. Those are the most common uses of experts. There are others including appraisers or vocational evaluators, to name two of many.
Expert witnesses can also be retained and testify against a court appointed expert. For example, if the court appointed a private child custody evaluator and one parent believes the evaluator failed in his or her duties or was biased in the evaluation, that parent can hire his or her own forensic psychologist to offer testimony against the court appointed evaluator’s performance.
Expert testimony requires a lot of planning and preparation. Since most experts are professional witnesses, they are not as easily impeached and a thorough understanding of the expert’s report, conclusions and areas of impeachment is necessary. Also, California courts sometimes given court appointed experts the benefit of the doubt so divorce trial lawyers should be prepared to give the court more than nit picky items when attacking such an expert’s recommendations.
Where are some California divorce trial topics?
Divorce trial and child custody
Child custody cases usually settle. When they go to a trial in a divorce case, it’s usually because there are allegations of abuse (child abuse, substance abuse, etc.), neglect or domestic violence. Parenting time disputes, by themselves, usually don’t make it to a trial but there are exceptions.
Divorce trials that involve child custody disputes often involve heated cross examinations. Parents gets emotional about their children and that is normal. But smart divorce lawyers know emotion doesn’t rule the day in Family Court. Facts do. A talented divorce lawyer who is putting on a child custody trial focuses on the core issues that affect a child’s best interest – health, safety, education – and if there is abuse, he or she doesn’t just ask questions that can be refuted by “he said, she said” claims but is based on compelling evidence.
Children can testify at divorce trials but that is not common even with Family Code 3042. Most judges appoint a lawyer for the children if it gets that far although there are judges who will speak directly with a child, especially an older child.
Read our California child custody law guide to learn more about this very important area of divorce law.
Divorce trial and child support
Child support typically goes to trial if there are disputed issues of (a) income (typically when one parent is self-employed), (b) failure to work (issues of imputing income) or (c) parenting time disputes. The last one occurs when each parent claims completely different time with the children and that time makes a big swing in support. Such cases are infrequent but they do occur.
The more common issues of income or imputation of it will involve expert testimony from forensic accountants or vocational evaluators.
We have written a comprehensive guide on California child support laws. Check it out.
Divorce trial and spousal support
Spousal support at a California divorce trial is mostly about Family Code 4320. We strongly suggest you read our guide on spousal support in California. There is an entire section dedicated to Family Code 4320 and determination of the marital lifestyle.
Divorce trial and attorney fee requests
Attorney fee requests are very common in California divorce trials. Let’s go through the most common types we see.
California Family Code 2030 through 2032
California Family Code 2030 and 2032 focus on a spouse’s need for attorney fees and the other spouse’s ability to pay based on their relative circumstances. The goal of this statute is to create “parity.”
At a California divorce trial, the issue of attorney fees is typically presented by an attorney fee declaration from the lawyer and the itemized billing statements provided to the Court and the other lawyer. Attorney-client privileged portions of the bills within the billing entries should be redacted. There usually isn’t extensive testimony on attorney fees but there is a lot of argument if the fee request is a large one. Common arguments at a divorce trial for fees are that the fees requested are necessary to level the field because of a disparity and access to income and money to pay for fees. Common arguments at a divorce trial against fees are the fees expended were not reasonable or necessary, the disparity in income is not a large one or each spouse has necessary access to funds.
California Family Code 271
Family Code 271 doesn’t care about a spouse’s need. Section 271 is all about punishment, specifically sanctions based “on the extent to which the conduct of each party or attorney furthers or frustrates the policy of the law to promote settlement of litigation and, where possible, to reduce the cost of litigation by encouraging cooperation between the parties and attorneys.”
At a divorce trial, the lawyer requesting such fees points to the other spouse’s delay tactics, misconduct, or other actions that unnecessarily increased the attorney fees. The lawyer defending against the sanctions request typically claims his or her client did no such thing and claims their conduct was reasonable in light of the facts and disputed areas.
California Family Code 3027.1
Family Code 3027.1 allows attorney fees in the following circumstance:
If a court determines, based on the investigation described in Section 3027 or other evidence presented to it, that an accusation of child abuse or neglect made during a child custody proceeding is false and the person making the accusation knew it to be false at the time the accusation was made, the court may impose reasonable money sanctions, not to exceed all costs incurred by the party accused as a direct result of defending the accusation, and reasonable attorney’s fees incurred in recovering the sanctions, against the person making the accusation. For the purposes of this section, “person” includes a witness, a party, or a party’s attorney.
Feldman motions in California family law cases
Attorney fees pursuant to the case of In Re Marriage of Feldman are primarily based on a lack of proper disclosures and creating unnecessary legal fees in the process. The Feldman Court made certain compelling statements about each spouse’s obligations toward the other, all of which was already law but it was refreshing to see an appellate court confirm the importance of complying with such laws. The Court wasn’t shy about the amount – $250,000.00 in monetary sanctions and $150,000.00 in additional attorney fees. Ouch…but well deserved.
California Divorce trials and property division
Property includes real property (real estate of any kind), personal property (anything that isn’t real property) and sometimes intellectual property (patents, trademarks, etc.)
The family residence should rarely end up in a divorce trial unless there are disputed separate property contentions, reimbursement claims or related issues. A very common separate property contention is a Family Code 2640 claim due to a separate property downpayment on a home. Most of the time, the family residence is either sold or one spouse buys out the other through an equalization payment or a trade-off of other assets.
If the family residence or any real property ends up in trial, there is often some expert testimony, either from an appraiser or sometimes a forensic accountant if tracing of separate property interests or reimbursements to or from the home is involved.
As for personal property, that could be many things and depends entirely on the asset at issue. Look at it this way:
- Does the property need to be valued? If so, expert testimony may be needed.
- Is there is a dispute about its separate versus community property nature? Then evidence will have to be received about its “characterization.”
We have written a guide on California divorce laws. We encourage you to check it out.
Divorce trial and business valuation and division
If the business has value and it is in whole or in part community property (or one spouse claims it is), there will likely be expert testimony at a trial about its value. This testimony will include an evaluation of the business’ profit and loss statements, balance sheets, ledgers as well as the industry the business serves.
What goes into preparation for a California divorce trial?
We have written an article about how much a divorce will cost. But let’s focus on divorce trials. What is the time commitment?
Trial preparation usually involves:
- Reviewing and organizing trial exhibits
- Subpoenaing any necessary witnesses
- Preparing questions and topics to go over with the witnesses, lay and expert.
- Preparing questions and topics to go over with the client’s spouse
- Preparing the client for the trial, direct and cross-examination
- Preparing the divorce trial brief, exhibit list and witness list
- Preparing opening statement and closing argument
Those 7 things are the heart of most divorce trials. Let’s look a little closer at divorce trial briefs, exhibits and subpoenas.
California Divorce trial brief
The divorce trial brief is a typewritten road map. It takes the judge who will hear your case issue by issue and lays out the facts and the law that support your specific position. Trial briefs can be short (less than 10 pages) or very long (50 + pages) and everything in between, depending on case’s complexity.
Divorce trial exhibits
Trial exhibits are the foundation of any trial. No matter what the issue, there are often exhibits that support it. In child custody cases, we often see emails, text messages, photos and even printouts from social media sites.
Divorce trials that involve financial issues usually involve deeds, bank, pension or 401(k) statements, credit card statements, life insurance declarations and many more.
In divorce trials that involve disputed community versus separate property contentions, expert reports, tracing of dollar numbers throughout escrow documents and financial statements are common. If there is a business at issue, profit and loss statements, balance sheets, ledgers and related business financial records are often relevant.
What we have written scratches the surface of exhibits we see and use in divorce trials.
Divorce trial subpoenas
Divorce trial subpoenas compel something – that something may be a person to appear in court, documents or both. Witnesses and documents are common elements of a California divorce trial. If “consumer records” are being subpoenaed (that term is very broad and covers more categories than you may realize), there are certain minimum timelines and specific rules that apply.
What is an opening statement?
The opening statement is the divorce trial attorney’s first opportunity to present his or her client’s case. The opening statement is not a place for argument. It is designed to show “what the evidence will show.” The opening statement will go through the facts but do so persuasively.
What are direct and cross-examination in a divorce trial?
Direct examination is how testimony typically starts. For example, if your divorce lawyer puts you on the witness stand, he or she will ask you questions and you will answer them. But for limited exceptions, your divorce lawyer cannot lead you to the answer. Leading questions are those suggest the answer within the question or assumes that certain facts stated in the question are true, when they are really in dispute. Want examples?
- Isn’t it true that your wife refused to let your son see you last weekend even though it was your scheduled time with him?
- How often have you confronted him about his emotional abuse by him of your daughter?
- You earned an average of $150,000.00 per year for the last three years of your marriage, correct?
If the divorce lawyer calls a hostile witness (or the other spouse) in his or her part of the case, that witness can be called per Evidence Code 776 and be treated as an adverse witness. An adverse witness can be examined through leading questions, similar to cross-examination.
Once a witness testifies, the other side gets to ask questions by cross-examination. Cross examination questions are often leading and compel the person answering them to either answer “yes” or “no.” Of course, the answers I don’t know or I don’t remember are also acceptable so long as they are consistent with the truth.
From where does a person testify in Family Court?
So where does all this testimony occur? Most of the time, in the “witness box”. The person who testifies is first placed under oath, sits in the box and the examination (direct or cross) begins.
How are exhibits used in a California divorce trial?
We have already discussed exhibits in a trial are very important but how are they used? First, remember that exhibits can be anything – a document, image, video or audio and its transcript, etc. These exhibits are usually “marked for identification” (meaning they are given an exhibit number) followed by questions about it that follow.
Most exhibits require that a foundation be laid for their authenticity (the exhibit is what it purports to be). Just because an exhibit is marked for identification does not mean it will be received into evidence or that questions about it will be permitted. The divorce attorney opposing the exhibit may object to its reference during the trial or receipt into evidence on proper grounds. The judge makes the last call of whether to sustain (agree with) the objection or overrule (disagree with) it.
What is the judge’s role in a divorce trial?
You all know who the judge is – the man or woman in the black robe. The judge’s role is to be a trier of the facts. That means what facts are accepted and not, the credibility of the parties or witnesses, legal rulings (including what to accept as evidence) and management of the trial proceedings is all up to the family law judge. The family law judge also makes the final decisions on the case.
If that sounds a little scary, it should. Let’s be clear. When you give the decision to a judge on your divorce trial, you are giving the decision to a stranger who may or may not agree with your position. Your lawyer is the advocate of your position. For those who like math, here is a formula:
Reasonable factual positions + legal authority for such positions + good advocacy = increased chance of success at trial.
Is a trial result guaranteed if you feel you are right on the facts and law? Only if the judge agrees with you. A divorce trial judge has “discretion” in many facets of a divorce trial. In some situations, that discretion means there is no right or wrong decision unless the judge abuses that discretion. However, in some instances, there is little to no discretion and the law mandates a judge’s decision if certain factual findings are made.
What decisions are discretionary or not is something your California divorce trial lawyer should explain to you before you go ahead to trial so you understand the risk, cost and benefit of the trial.
Role of department clerk
When I was in law school more than a couple of decades ago (suddenly, I feel older), my favorite subject was Evidence. I had a great professor, the Honorable and Late Robert E. Thomas. Judge Thomas passed away in 2013. He was one of the finest judges Orange County ever had. He once said something I will never forget. “You want to have a good day in Court? Be good to my clerk.” It was sage advice.
The department clerk is very important in the process. He or she takes your exhibits, processes them, takes notes of the judge’s rulings which become a “minute order” (think of minutes of a corporation that state what was discussed), coordinates the calendar and so much more. Good divorce lawyers have professional and respectful relationships with clerks. Get demanding, demeaning or flippant and the lawyer plays with fire. There is value in professionalism, courtesy and patience and word about the good lawyers and the ones not well liked does spread between the various departments.
Role of the court reporter
The Court Reporter takes down everything said “on the record” in the trial proceeding. This creates a record (a transcript) of everything said by everyone.
Good divorce trial lawyers create a clean record by speaking at a reasonable pace, articulating their words and making the court reporter’s job easier.
What is a closing argument?
Opening statement was the first impression. Closing argument is the last. It’s exactly what the name states – it’s the argument at the end of the divorce trial of the facts, law and evidence submitted and why these things point to a family law judge’s decision in your favor.
How does the family law judge tell us of his or her decision?
A judge’s decision can come in three forms:
- A decision immediately after the trial, recited for everyone to hear
- A decision at a future date where the parties and lawyers come back to hear the court’s ruling
- A decision by the court in writing to the lawyers (or self represented parties)
Most of the time, the family law judge will ask one of the lawyers to prepare the final orders consistent with the Court’s ruling. Sometimes, the judge will simply state that its own written ruling will serve as the final ruling.
Did you enjoy this article on California divorce trials?
We understand no one article can cover everything but we hope the points we covered here gave you a better understanding of how California divorce trials work.
If you need intelligent and experienced representation for your California divorce case, whether or not your case will go ahead to trial, we urge you to set up a case strategy session with us at our Orange County office. We charge a very reasonable fee for such a session and it is a great way to get your questions answered and give you direction on a preliminary strategy on your case. We are located in Santa Ana, California. Here is a helpful map and route guide to find us.