What to Expect at Trial
By Sandra Fava and Eric Solotoff
When heading to court in a divorce, it’s important to be informed about the process.
In the Beginning-The party who filed first (the plaintiff) puts on evidence first. Evidence usually comes in two forms: testimony and documents. The plaintiff can choose which witnesses appear and in what order. Sometimes the plaintiff even decides to call the defendant as their first witness.
Plaintiff’s Testimony-If you’re the plaintiff, your initial testimony will be conducted by your lawyer. It’s your lawyer’s job to cover every salient fact that needs to be placed into evidence. That initial examination may be your only chance to tell your side of the story. At the same time, you must present the court with any relevant documents to support your case.
Cross-Examination-Next, your spouse’s lawyer gets to ask questions in what is called “cross-examination.” Cross-examination allows the opposing side to test your credibility or show documents or other evidence that may appear to contradict your account. It is often pointed and painful, and every witness must be prepared to be challenged.
Redirect and Re-Cross-Your attorney then gets a second chance to ask you questions, with limitations. The questions must pertain to subjects on which you were cross-examined. The goal is to
clear up any misunderstandings or ambiguities. The other side can then “re-cross” you on subjects discussed during re-direct. Once the witness has been thoroughly examined, it’s time for a new witness. The same rules apply to all future witnesses. Direct examination of a key witness can go on for hours or even days, which means you may have a long wait before your lawyer gets a chance to cross-examine your spouse and even longer until you can set the record straight with your own testimony.
Defendant’s Turn-Once the plaintiff’s attorney has concluded, the defendant gets to present his or her case by calling each of their witnesses. The presentation of the defendant’s case is similar to the plaintiff’s, with direct examination of the witnesses followed by cross-examination, re-direct, and re-cross.
Rebuttal-If subjects come up in the defendant’s case that the plaintiff never discussed, the plaintiff can recall witnesses for the purpose of rebuttal.
Trial Issues-Cases frequently focus on equitable distribution, which can be unwieldy because people own complex assets, as well as alimony and custody. Experts may be necessary. In these proceedings, both sides are supposed to share their exhibits with the other side before the trial. It is usually productive, if not imperative, to sit down with your attorney in the days before a complex hearing to review what you will have to tell the court and to try to anticipate how the other side will respond.
For more information on these and other questions regarding divorce in New Jersey, contact Fox Rothschild Family Law attorneys resident in the Morristown office, Eric Solotoff at esolotoff@foxrothschild.com or (973) 994-7501 or Sandra Fava at sfava@foxrothschild.com or (973) 994-7564.
