It is extremely rare for any divorce to go to trial. One lawyer estimated to CBS News that only five percent of divorces go to trial, but even that estimate is actually probably too high.
An actual trial where both spouses hire their own lawyer to fight to the bitter end is simply too costly for most middle-class families or poor families.
Many cases do go through at least some divorce pre-trial procedures before settling, though, so it is good to know some of the common steps.
Probably the most important divorce pre-trial activity is discovery. Discovery can be very expensive and upsetting for everyone involved.
This is a process where each side is allowed to seek information from the other side.
Probably the most common form of discovery is a request for documents. Bank accounts and emails are probably the most commonly requested information.
Parties can often make “interrogatories,” which are simply questions posed to the other party.
Requests for admission are another common discovery tool. This simply asks the other side to admit some fact is true.
Depositions are important in larger disputes. This is where the lawyers sit down with a witness and ask them wide-ranging questions. Depositions get crucial information out and also give the parties an idea of how a witness will come across at trial.
Discovery is typically going to be very painful. An important principle in the American legal system is that both sides should have access to the facts underlying a dispute.
That means that your spouse is probably going to be able to see some very sensitive information, and you can be punished by the court for not being forthcoming.
Spouses can work on settling their disputes anytime before the divorce decree is finalized by a judge. Settlement discussions often come up around big discovery revelations.
For example, after the spouses each learn exactly how much money the other has, there is often an attempt to reach a settlement.
Right before trial is another common time to settle, as parties have all the information they are going to get at that point and they may be able to make an educated guess at how the judge will rule.
In a normal trial outside the family law context, each side will often file motions that would end a case without a trial. These motions are much less common in divorce cases, but they do happen. Sometimes one party may move to dismiss the case.
One grounds to dismiss is jurisdiction. A court usually cannot rule on a divorce case unless at least one of the parties is a resident of the state, county, or city where the court is located.
Sometimes one party may try to get a divorce case dismissed from one state because another state’s law is more beneficial.
Another pre-trial motion that is common in most lawsuits, but much less common in divorce, is a motion for summary judgment. A motion for summary judgment is where one party says there are no facts in dispute, so the judge should rule without a trial.