A. No. Approximately ninety-five percent of all cases ultimately settle. Some settle with the parties never having to go to court, others require some preliminary determinations be made by the court. Each case is different and will settle under the conditions that are right for the parties involved.

A. A trial is the end of a long and expensive process that, in essence, tests how thoroughly prepared your attorney is for this potential outcome. Sometimes before the trial, there is a pretrial conference with the judge to organize the case and focus the issues. You will meet with your attorney to rehearse your testimony, go over questions that will be asked and may be asked, and reviewing documents that will be introduced as evidence. Your attorney will write the testimony, prepare witnesses and select exhibits to be introduced at trial. Attorneys will also prepare a written memorandum that summarize and explain points of law for the judge clarifying the issues and the facts. On the day of trial, the judge will which determine what cases will be heard that day or whether a case will have to be continued. If a continuance is not ordered, your case will be heard that day. The trial is made up of several phases:

• The petitioner’s case involves his or her testimony, immediately followed by opposing counsel’s cross-examination. The petitioner also introduces his or her exhibits and documents. Then the witnesses for the petitioner testify and are cross-examined by the other side. Likewise, they may offer documents into evidence.
• The respondent has the same opportunity— to give testimony, present evidence, and offer witnesses. The petitioner ’s attorney may cross-examine each witness.
• The attorneys usually do the opening and closing statements or arguments for their clients. A judge hears divorces and other domestic relations cases (not a jury). After both sides present their cases, each is given the opportunity for rebuttal, which is testimony that denies or contradicts what the other side has presented. The lawyers will have the opportunity to make a closing statement, in which they summarize their evidence and argue for the results they seek.
• Then comes the court’s decision. This may follow closing statements, or it may come days or weeks after the trial has concluded if the judge takes the case under advisement. Once the court makes its decision, the judgment must be drafted. Sometimes the court does this, but more often than not, the attorneys write it up for the judge to sign. This process can take weeks or even months in a complex or highly contested case.

A. Yes. Arbitration is a process in which a neutral third party renders a binding decision on the issues presented in a divorce, e.g., support, property, custody, etc. The arbitrator acts in much the same fashion as a judge. The parties pay the arbitrator (usually in equal shares), and the proceedings usually are faster and less formal than a trial. The arbitrator’s job is to listen to the facts of the case and render a decision. Private judging involves a similar process; the parties select a private judge to determine all issues in the dispute. While the cost of the arbitrator’s services are expensive, they are much cheaper than the cost of protracted litigation.

A. Yes, there are a couple of options worth considering: mediation and collaborative law. These options can sometimes be less expensive and less time-consuming than litigation. However, these options require both parties to be willing to give a little to get a little. These options will not be available in cases involving domestic violence.

Mediation is an informal dispute resolution in which a neutral third party, (a trained mediator) helps the parties resolve their conflicts and reach an agreement. Choosing sides or giving legal advice is not a mediator’s role. The mediator does not make decisions, but rather encourages the parties to work together to make their own decisions. Mediation is an increasingly popular option and generally cheaper than litigation. Depending on the agreement of the parties, attorneys may be present (or excluded) from the mediation session(s). The cost of a mediator’s services depends on several factors, including his or her experience, level of expertise, etc. You may even be able to find low-cost mediation through the local law school or bar association.

Collaborative law means agreeing to negotiate a settlement without going to court at all. The parties agree to cooperate fully in the settlement negotiation process and to provide freely and promptly any documents or information requested. The attorneys help to facilitate negotiations and draft settlement documents, but one drawback is that they cannot go to court. If at any point either party decides to pursue litigation, both attorneys are discharged and new counsel hired. Mediation and collaborative law are give-and-take situations. Nothing can be demanded and usually, a good deal of compromise is necessary. It is important to examine exactly what you want to happen in your case and to be aware of your “bottom line.” Fair negotiations and an open mind are essential to the success of these alternate resolutions. Bringing your anger over past events into the ring will ensure the failure of any settlement offers. These alternatives work the best when both parties are willing to work together to reach an amicable settlement in the best interests of all concerned. These options do not work well when there is physical abuse, substance abuse, persistent anger or passivity, mental health problems for one or both spouses (such as severe depression), or when one spouse wants to use the legal process for revenge or to punish the other spouse. In these situations, attempting to reach an agreement may be a waste of time and money for both parties.

A. It depends. Separate property is defined as anything you acquired before marriage, after separation, or anything you acquire by gift or some type of inheritance. You are entitled to keep your separate property as long as you can identify it. Most people, however, run into problems when the identity of their separate property is no longer that clear. Because most of us do not enter into marriage thinking we are going to get divorced, we do not take the appropriate efforts to keep our separate property segregated. The most common way to lose the identity of our separate monies is to “commingle” it with community monies. “Commingling” is, in essence, combining separate and community monies into one bank account and then being unable to tell which is which. Another common way is to just lose the records necessary to identify our separate property.

A. It depends. All retirement monies earned before marriage and after separation are your separate property which you are entitled to keep. Retirement monies earned during the marriage, however, are community property and are required to be evenly divided. While you may be very interested in keeping all of your retirement benefits, your ability to do so will depend upon how much other community property there is and your spouse’s willingness to do so. Being awarded all of your retirement benefits is not automatic.

A. The Court is required to divide community property equally between the parties. Community property is presumed to be anything acquired by the parties during the marriage. The Court will first attempt to divide community property in kind, i.e., certain items to one spouse and certain items to the other. If one spouse gets more community property than the other, the one receiving more will owe the other one half of the difference. This is called an “equalizing payment.” In many cases, there are items of community property that can be divided to make the division of community property equal such as retirement accounts, bank accounts, and securities. The Court frowns upon having to sell all of the community property and divide the proceeds.  Such an option is only used as a last resort.