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Winning Your Divorce Before Trial

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Most divorce cases never go to trial. The day you file for divorce, your trial date is months and thousands of dollars away. Divorces are won and lost in pretrial work and negotiations.  Here’s what you need to know about winning your divorce case before trial.

Winning Your Divorce Case Starts With the First Step

The first step to winning your divorce is to file first. That is correct. Be the Petitioner. You may be reluctant to be the one who files but, if you do not, you lose a valuable advantage. The Petitioner is the person who files the “Petition.” This is the first of the formal Court documents. It is the first document about your divorce that the Judge will read. In your petition, you get to state: what is at issue; what is reasonable; and what a fair Judge should do.

By filing first you will have a head start. You set the divorce timetable. Your spouse has to respond to the timetable you create. With this head start, you file first for the all-important Temporary Orders. You get to state the issues and your position on those issues first. The Judge reads your documents first. Your attorney gets to argue (speak) first at the hearing. You have the advantage and your spouse is stuck playing catch-up, and trying to refute what the Judge has already read and heard.

How Does Filing for Divorce First Help the Rest of My Case?

The second step to winning your divorce is to win the issues being contested in the initial pre-trial hearing that sets the terms of the “Temporary Orders.” These Temporary Orders control all aspects of your life and family during the divorce process. The Temporary Orders award temporary child custody, visitation, support, alimony (spousal support), payment of bills, and possession of the house, car, and access to community funds and family property.

Some attorneys tell you to not worry, that the orders are only temporary and can be changed later. Well, the reality is that Temporary Orders have a habit of becoming permanent. The Temporary Orders set the ground rules that control your family situation for months, and thus, become the new norm. If your suggestions for the Temporary Orders are adopted by the judge, your spouse has the heavy burden of showing the Judge why they were wrong in the first hearing, and why the Judge should now change their mind. That is a tough task. It is better and easier to win in round one.

After entry of the Temporary Orders things usually settle down for a while, and the clock starts to run on the trial date that is months away. This is the time period to organize and prepare. You work with your attorney on gathering information and documents, and preparing a plan for final resolution of your divorce.

Temporary Orders Set the Tone For Finalizing Your Divorce

During this period, after entry of the Temporary Orders, you should strictly adhere to every term of that Order. By doing so, you demonstrate that the Judge was correct in their initial ruling. You demonstrate that the terms of the Temporary Order are fair and in the best interest of the family. You demonstrate that there is no reason to change the terms of the Temporary Order.

Before you go to trial, you will be required to participate in “Mediation” or a “Settlement Conference”. This is a formal sit down negotiation with the Judge trying to help you settle your case. You must prepare for Mediation like it is the final trial of your case. With good preparation the mediation could be the final resolution of your case. Most cases that have not settled through informal negotiations, will settle at Mediation. You absolutely have to go to mediation with a well-thought, concise plan, and detailed support for your proposal. The Judge will be influenced by a thorough and reasonable presentation of your proposal.

It is important to be reasonable at mediation. Ask for what you want, but think about what a fair person would decide based on the facts. Don’t overreach. If you demand the moon, you will probably end up with an empty basket. The Judge is influenced by reasonableness, not over-reaching and bullying. Be polite and respectful (even when it’s difficult). It is better to walk with 90% of what you want, than to spend more money and time preparing for trial.

Contrary to a lot of talk, most divorce cases are resolved reasonably, without the need for trial. Finalizing divorces is what lawyers and Judges do for a living. We have seen thousands of cases and heard thousands of arguments. We can generally identify what is reasonable and fair, and try to move the parties in that direction.

If your spouse is somewhere out in left field, demanding the moon and the stars, mediation will probably fail. That is not your fault. You prepared. You were reasonable. You tried in good faith to settle and move on. You could not make your spouse listen to reason in the marriage, so it is not a huge surprise that they are still unreasonable. Hopefully their attorney and the Judge will help them to see the light.

Even if your mediation fails, your preparation for mediation was not a waste. By thoroughly preparing for mediation, you are already thoroughly prepared for trial. You will probably make the same reasonable presentation at trial that you made in mediation, and the Judge will order what your spouse would not agree to earlier.

Take the necessary steps early in the divorce process to ensure that you can win your case long before it goes to trial.

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