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Lynch & Owens Divorce Series: Step 10 – Divorce Trial (and the Many Challenges it Poses)
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Massachusetts divorce lawyer Carmela M. Miraglia discusses the trial process in a Massachusetts Divorce in Step 10 of the Lynch & Owens Divorce Series.

Thousands of books have been written about trial practice. Entire television networks dedicated to the subject have risen and fallen. Two thousands years ago, much of Rome was entranced by the the trial of Gaius Verres, as described by his famous attorney, Cicero. Many attorneys today believe being a “real lawyer” means winning at trial. When it comes to divorce, however, don’t believe the hype. A divorce trial represents the failure of the parties, judges and attorneys involved. Every divorce case should settle. Step 10 of the Lynch & Owens Divorce Series is all about problems and pitfalls of trial.

Table of Contents for this Blog

  • What Makes Divorce Trial so Difficult
  • Preparing for Trial: Sifting Through Documents and Rehearsing Testimony
  • The Very High Cost of a Divorce Trial
  • Get Ready to Wait: the Long and Winding Road of a Divorce Trial
  • The Broad Discretion of Probate and Family Court Judges: Why Trial Outcomes are Uncertain
  • Conclusion: Obviously, a Good Lawyer Matters

What Makes Divorce Trial so Difficult

As I said in my opening, thousands of books have been written about trial practice. If you want to learn more about the mechanics of trial, spend $15.00 at The choices are endless. In today’s edition of the Lynch & Owens Divorce Series, however, I will focus on the many challenges in a Massachusetts divorce specifically. There are four main issues that make divorce trials difficult: the level of preparation; the financial cost; the duration of the trial process and; the uncertain results.

Preparing for Trial: Sifting Through Documents and Rehearsing Testimony

The first drawback to a divorce trial is the large volume of preparation that is required in advance of the opening of evidence. Many divorce cases settle at the Pre-Trial Conference, which is a hearing, as a matter of course, scheduled by the court in every divorce filing, which generally occurs 5 to 12 months after the Complaint for Divorce is initially filed. If the parties cannot reach agreement prior to or at the Pre-Trial Conference, all hope is not lost, however. A judge will generally schedule an additional “Status Conference” several months out, giving the parties and counsel the chance to work on resolving the issues preventing settlement. If the parties still have not settled by the Status Conference, things get more serious.

Massachusetts Probate Court judges generally schedule trials 6 to 9 months out from the final Status Conference, meaning that a typical divorce trial commences as far out as about 18 to 24 months after the initial filing of the Complaint for Divorce. With the scheduling order setting the trial date, the judge also enters a pre-trial order, including a discovery deadline and orders for the parties and counsel to exchange witness lists, exhibit lists and settlement proposals before trial. As these deadlines approach, lawyers must bear down and focus on developing evidence; pouring over potential trial exhibits (i.e. documents that will be entered as evidence); and planning witness testimony. The trial preparation process eventually drowns out the ability to negotiate settlement as lawyers are increasingly driven to devote all of their time and resources into preparing for a trial.

The Very High Cost of a Divorce Trial

If you have ever hired a lawyer, you have probably received legal bills in which your attorney spends 3 or 4 hours or more per month on your case at a rate of nearly or greater than $300.00 per hour. These bills stop as trial approaches. Preparing for trial dominates a lawyer’s schedule, and clients can expect to receive bills showing their attorney working 20 or more hours a week on their case in the days before trial. You don’t need a calculator to realize that this adds up to a lot of money.

A good, conservative rule of thumb for trial is that a client can expect to pay for at least 3 hours of preparation for each hour of trial time. So, if your lawyer spends 18 hours in court during a 3 day trial, the client can expect a bill showing at least 54 hours of out-of-court preparation work. Unlike jury trials in which a lawyer makes his or her best pitch in closing arguments and hopes the jury agrees, attorneys in Probate and Family Court trials must submit “proposed findings of fact” to a judge after trial closes. Drafting proposed findings is also very laborious. The attorney must reviewallof the testimony and documentary evidence and list each and every fact that he or she wants the judge to notice, along with references to the specific page and exhibit number of each document referenced. Findings are especially crucial in financial cases, where documentary exhibits such as bank statements and tax returns are routinely entered into evidence without a witness on the stand to provide guidance to the judge regarding which part of the record the judge should focus on. It is the job of the attorney drafting findings to identify for the judge all of the details from documentary exhibits that were not the subject of any witness testimony offered at trial. Most attorneys agree that drafting findings is distinctly tedious, unpleasant and (unfortunately) essential to the trial process.

It is very difficult for an attorney to put on a trial of any length for less than $20,000. Think of it this way: if your attorney charges $250.00 per hour, then a 40-hour workweek dedicated to a single case costs $10,000. If you are facing a multi-day trial, your lawyer must dedicate larger and larger portions of his or her work week to your trial as the first day approaches. Once trial starts, the attorney is working almost exclusively on your case. Following trial, the lawyer must engage in the grueling process of drafting the above mentioned findings of fact. Doing all of this in less than 80 hours of work is next to impossible. In most cases, an attorney will spend substantially more than 80 hours preparing, conducting trial and drafting findings.

Get Ready to Wait: the Long and Winding Road of a Divorce Trial

Probate and Family Court trials take place in front of a judge, not a jury. I often envy my fellow lawyers in district and superior court who appear in front of juries. It’s not the big closing arguments or the showmanship of jury trials that I envy, it’s the speed and celerity. A jury typically provides a verdict within a matter of hours or days after the close of evidence. This is emphatically not the case in Probate Court. In Probate Court, you can expect to wait at least 3 months – and probably more like 6 to 9 months – for your judge to enter his or her written decision after the close of evidence at your divorce trial. Combine this with the fact that Massachusetts Probate and Family Court judges often stagger trial dates over weeks or months, and it is not unusual for more than a year to elapse between the first day of trial and the release of the judge’s decision. The wait is just as excruciating as it sounds.

Think about what can happen in a year: Kids grow older and change; new relationships begin and end; jobs are acquired and lost, and so on. Now think about spending an entire year mired in uncertainty as you wait for a judge’s decision based on evidence the judge heard more than a year earlier. If you need a reason to avoid trial in your divorce case – other than the cost and unpredictability – then the wait for closure alone ought to persuade you.

The Broad Discretion of Probate and Family Court Judges: Why Trial Outcomes are Uncertain

In Massachusetts, Probate and Family Court judges have extremely broad discretion to enter judgment orders as they see fit in divorce cases. We know this because aggrieved parties sometimes file an appeal after receiving a divorce judgment that they do not like. The vast majority of these appeals fail; a divorce judgment will only be reversed if the Appeals Court finds “clear error”. This is extremely rare. The Appeals Court almost never second guesses the factual findings of the trial court judge, and legal standards such as “best interests of the child” are so amorphous and subject to interpretation that it is rare for an appellate court to view the Probate Court judge’s decision as “clear error”. Indeed, divorce judgments often stand even if the Appeals Court identifies numerous problems with the trial judge’s approach.

By way of example, in child support cases in which the parties earn combined incomes of less than $250,000 per year, Probate and Family Court judges are bound by the presumptive application of the Massachusetts Child Support Guidelines. Judges can deviate from the Guidelines only if they enter findings explaining the reason for the deviation. By and large, however, the Guidelines impose a degree of predictability in child support cases that parties and attorneys can largely rely on. This is not the case with other divorce issues, such as child custody, parenting time and/or the division of marital assets; for these issues, there is no formula. Following a long-term marriage, a judgment dividing the marital assets in a roughly equal manner is fairly standard, but hardly guaranteed. For short and moderate term marriages, asset division can often be anyone’s guess. Custody decisions are especially unpredictable compared to financial issues in which judges can rely on objective criteria such as account balances; appraisals; and objective valuation methods. Child custody decisions are not based on numbers, they are based almost entirely on the judge’s impressions of the parties, and perhaps the opinion of a Guardian ad Litem or therapist.

Most divorce judgments result in orders that fall somewhere in between the positions sought by each party. If one party is clearly and obviously unreasonable, a judge may enter a more one-sided decision, as well as an order requiring the offending party to pay the legal fees of the other; however, large orders for legal fees are rare, particularly in cases where a party lacks substantial assets that would enable him or her to write a substantial check to the opposing attorney. Divorce judgments after trial also tend to be blunt and simple; do not expect the judge to fine tune the holiday schedule or provide a nuanced order regarding the apportionment of your children’s extracurricular expenses. Don’t expect the judge to factor in the different after-tax values between a 401(k) account versus a parcel of real estate. Expect a blunt order that establishes a basic parent plan, a straight-forward child support or alimony order, and an order that divides the assets in a rough, approximate manner.

When you settle a divorce case, you get certainty and some degree of control. You may be required to compromise on issues, but a professionally crafted Separation Agreement should leave nothing to doubt. You will know exactly where you stand; you will have immediate answers. A divorce judgment after trial often lacks detail and nuance; there are frequently gaps and details missed. The judge resolves the major substantive issues, but the final product is generally much less refined than a well-drafted Separation Agreement developed by the parties.

Conclusion: Obviously, a Good Lawyer Matters

If you have to go to trial, it goes without saying that having a good lawyer matters. But you knew that already. The best lawyers view trial as a last resort, but if there is no other choice than trial, do your research and select an attorney who you trust for the bumpy ride ahead.

For additional installments of the Lynch & Owens Massachusetts Divorce Series, please visit the main series page.

About the Author: Carmela M. Miraglia is a Massachusetts divorce lawyer and Cape Cod family law attorney for Lynch & Owens, located in Hingham, Massachusetts and East Sandwich, Massachusetts. She is also a mediator for South Shore Divorce Mediation.

Schedule a consultation with Carmela M. Miraglia today at (781) 253-2049 or send her an email.

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