The short answer to the question, will I have to go to trial as a part of my Indiana Divorce proceeding is, probably not. The majority of divorce cases reach a settlement agreement in which the spouses agree on all aspects of their case. It will likely take some exchange of information, time and a lot of negotiation on the part of your lawyer to reach a settlement agreement, but it is quite probable that you and your spouse will come to an agreement that will make a trial unnecessary. And, if it seems as if you and your lawyer cannot get any further in negotiations with your spouse and his or her lawyer, all hope of avoiding trial may not be lost. The next step to determine whether an agreement may be reached is a mediation.
A mediation is really a formal settlement conference. At a mediation you would attend with your divorce attorney and your spouse would attend with his or her attorney. A third attorney, the mediator, would be present. The mediator is not a judge and does not represent either of the parties. The mediator is typically a family law attorney with additional mediation certification. Some couples are only able to come to an agreement with the assistance of a mediator. But how? How does a mediator help? In a typical mediation you would be in a room with your attorney and your spouse is in a room with another attorney. The mediator acts as a “middle man” taking the offers and counteroffers of the parties back and forth between the rooms to determine whether a settlement agreement can be reached. However, the mediator is more than that. The mediator is able to speak confidentially with each of the parties to point out the strengths and weaknesses of their divorce case. The mediator often helps each of the parties understand the possible risk of going to trial and contrasts it with the possible benefits of going to trial. Mediators often go over the “best day” at trial and “worst day” at trial with those going through divorce to help the parties put into perspective how much they stand to gain at trial.
In the event that a settlement is reached at mediation, your attorney and your spouse’s attorney will draft a full settlement agreement that will resolve your case. You and your spouse will sign the agreement before you leave the mediation session.
However, not every case settles at mediation. You, as a party to a divorce mediation, has the final say as to whether or not you wish to agree to a settlement. You do not have to waive your trial and come to an agreement unless it is something that you are comfortable with after having an opportunity to discuss it with your attorney.
If you and your spouse aren’t able to reach a settlement agreement through negotiation or through mediation, the next step for your Indiana divorce will be a trial. The typical Indiana divorce trial will take at least one full day. The hearings are scheduled several months in advance to give you and your attorney the opportunity to prepare for the trial. When that day comes, you will have to testify at the hearing and your attorney will likely need to have physical evidence admitted into evidence. The proceedings are presided over by a judge and subject to the Indiana Trial Rules and Indiana Rules of Evidence. This is a formal court setting. It is not an opportunity for both sides to show up and tell their full side of the story as might happen in a small claims case. Whether or not testimony, records or other documents will be allowed into evidence will be determined by the Indiana Rules of Evidence, which is a complex set of rules most people who are not attorney do not understand. In short, your attorney will have to think about what exhibits he or she will introduce at the trial and possibly need to get affidavits certifying business records, get certified copies from clerks offices, may need to hire an expert witness, etc.
The amount of time that a divorce attorney needs to spend on each case in order to get to trial varies by case. However, you will meet with your attorney more often leading up to the trial. You and your attorney should go over the questions he or she will ask you at trial. You should also role-play what you should expect when being cross-examined by your spouse’s attorney, how to answer questions and even what to wear the day of the trial.
The additional time your attorney must spend on your case in order to zealously represent you at trial and to prepare you will increase the amount of your attorney fees. However, it is important to be ready to present the best case possible to the judge. This is your opportunity to present evidence and be heard by the Court. And, after your trial, your attorney will likely be asked to submit findings of facts and conclusions of law regarding your divorce hearing. You will almost certainly not have a decision regarding your divorce on the day of the hearing. Instead, it will often take the judge several weeks or even months to draft the final order in your divorce case.
As you can see, going to trial is the end of a long, often frustrating process. However, in some circumstances it is necessary and you and your attorney should be prepared. If you are considering filing for divorce or have decided to file for divorce and live in Hamilton, Boone, Marion or Johnson County, Indiana, call Halcomb Singler today for a divorce consultation at (317) 575-8222 or click here. There is a $200.00 fee for the consultation, which will be credited to your first bill if you decide to hire a divorce attorney from Halcomb Singler, LLP.