The Trial (Part 2)

If your wife was the Petitioner filing for divorce, she will present her evidence first by calling witnesses and presenting exhibits. Your attorney can cross-examine her witnesses and object, where appropriate, to her evidence. If the court sustains the objection, the information is not admitted into evidence, which theoretically means that the judge will not consider it in the decision.

After your wife finishes presenting her case, announcing that she "rests," you will then present your case. After you rest, the Court may permit the Petitioner to present "rebuttal" testimony. Your wife is then limited to refuting your evidence. The purpose of rebuttal, as the name implies, is simply to give the petitioner a chance to respond to the respondent's evidence. So, for example, if your brother testifies to seeing you take the kids to school every day of the week, your wife will be able to put on a witness to contradict that testimony, perhaps to testify that you drove the kids only three times a week. Thereafter, testimony is concluded.

While opening and closing arguments are permitted in divorce proceedings as in any other trial, most lawyers do not use them. Since judges, not juries, decide divorce cases in most states, attorneys rightly find it unnecessary to give impassioned orations in front of a battle-hardened and sophisticated judge. Additionally, opening and closing arguments are often used to simplify and summarize complex or voluminous evidence. The evidence in divorces is usually neither voluminous nor complex. Furthermore, an experienced Divorce Court judge probably does not need the assistance of your attorney to understand the evidence and arguments, and may in fact be annoyed by a closing argument. As a result, I will make a closing argument only if I sense that the judge is unclear either about my client's objectives or about the importance of a piece of evidence central to my client's case.

This online custody guide is adapted with permission from "Civil War: A Dad's Guide to Custody" (266 pages, softcover) - available in our online store.