If you are involved with a divorce or family law case and the case is not eventually settled, it will be scheduled by the court to go to trial. A trial, also sometimes called a hearing is a procedure before the court in which testimony and evidence are presented so that a judge can make a decision. When a trial is held before a jury, it is called a jury trial. If the trial is before a judge only, then it is called bench trial. The vast majority of domestic cases that go to court are decided in bench trials.

Does every Georgia divorce and family law case go to trial?

No, most divorce and family law cases do not go to trial.  For the most part these types of cases are dealt with through alternative dispute resolution (ADR) methods such as mediation, collaboration, arbitration and negotiated settlement agreements.  A trial generally only becomes necessary if the spouses are unable to negotiate after several attempts and persuasive attempts by the attorneys and mediators to facilitate settlement of the case outside of court.  Most decent attorneys will recommend that their own clients avoid going to court because of the cost and attorney’s fees associated with going to trial.

Even in trials lasting only a day can result in thousands of dollars owed in attorney’s fees.  There are financial incentives to avoiding trial as the money that will be spent for attorney’s fees at trial can be spent for more necessary things like house payments, retirement, savings, and children.  Trials are only reserved for when neither party has the capacity to negotiate a solution to their case.  In the cases that are set for trial most cases are settled before the completion of the final hearing.  Many judges will not allow a case to be scheduled for trial unless both parties have attended mediation for a minimum amount of time.  On the day of the final trial it is not uncommon for the judge and counsel to encourage the parties to negotiate beforehand while they are waiting for their case to be heard.  Most domestic cases are settled prior to the start of a final hearing, even most cases that have already been scheduled for trial.

What is the difference between a hearing and a trial?

The legal terms of “hearing” and “trial” are used interchangeably by legal professionals to describe the process of a case being heard in open court and a verdict reached by a judge or jury of a particular legal matter. However, the terms can delineate the way in which the trial is being heard.  A hearing, for example, generally means that the case will be presided over by a judge and will be limited in scope to one for two issues.  Whereas, the term trial generally refers to a final hearing where the entire case will be heard, evidence presented, and final decision on all issues will be rendered.  Therefore, the term trial is frequently used to describe the process of the final hearing, which is the last appearance in court prior to the issuance of a final decree.  Furthermore, hearings can come in many forms and it is not uncommon for parties to attend several hearings before their divorce or family law case is finalized.  Hearings may be permanent or temporary in nature and can deal with issues such as custody, support, use of residence, and violations of previous orders at any point in the active case.

How many witnesses can I have in a Georgia case?

At a final hearing you are afforded as many witnesses as the court feels is necessary to present your side of the case.  Your witnesses may provide firsthand accounts and or expert testimony concerning evaluations or reviews of evidence.  A witness’s testimony will only be considered inadmissible if their testimony is found to be irrelevant to the matters at hand, which is to be determined by the judge.  Generally, in a final trial, witnesses’ may also only provide their testimony in person and the court will not accept testimony only given by affidavits.  Each witness may be provided with their affidavit and may be questioned on the basis of facts concerning their affidavit or their involvement in the case or their expert opinion.  At a temporary hearing judges generally only accept the testimony of the party and one other witness for each side of the case.  Also, at a temporary hearing, affidavits of witnesses can be presented to the judge for review and consideration so long as they have been properly prepared and served on the opposing party.  Georgia Uniform Superior Superior Court Rule 24.5 states the following in regard to temporary hearings:

(A) At temporary hearings the parties involved and one additional witness for each side may give oral testimony.  Additional witnesses must testify by deposition or affidavit unless otherwise ordered by the court. Any affidavit shall be served on opposing counsel at least 24 hours prior to hearing.
(B) Except by leave of court, the minor child/children of the parties shall not be permitted to give oral testimony at temporary hearings; such child/children will be excluded from the courtroom or other place of hearing.  When custody is in dispute, if directed by the court, minor child/children of the parties shall be available for consultation with the court.  At any such consultation, attorneys for both parties may be in attendance but shall not interrogate such child/children except by express permission from the court.  Upon request, the proceedings in chambers shall be recorded.

The court also has the authority to make exceptions to include other witnesses if the judge finds it necessary.

Can affidavits be used instead of witnesses?

At a final hearing it is generally not accepted by judges to have affidavits used in lieu of live testimony. In some cases however judges may make exceptions to this rule, but it is imperative to determine if the judge will make this exception prior to the date of the trial.  Judges are known to make such rare exceptions if the witness was unable to present testimony due to serious illness, death, or if the document was produced by a court appointed expert for review of the case.  If the affidavit is presented during the trial the other party has the right to review the information prior to the document being submitted as evidence.  In temporary hearings, due to the urgency of the matter and limitations on the number of witnesses it is more commonly accepted to have affidavits submitted in lieu of live testimony in court.  If a witness does not want to get involved or is hesitant to appear in court as a witness, either party can have them subpoenaed to appear in court as a witness on the date of the trial.

Does Georgia law allow me to have a jury trial for my divorce?

The state constitution makes it possible for either party to elect for their case to be heard by jury.  However, a jury trial is only an option in a few types of select case.  A jury trial may be used to settle a divorce, but cannot be used for custody case, visitation, or the request of attorney’s fees.  A jury trial may however decide any aspects of a divorce that are solely financial in nature such as alimony, child support, divisions of marital assets and division of marital debts.

What is Georgia family law court?

Family law court is a part of the superior court system that is designed to handle cases pertinent to the family unit i.e. divorce, custody, orders of protection, and other various domestic cases.  Many counties in Georgia have a separate superior court for each county.  However, in some parts of the state, two or more counties may share resources and a judge may hear and decide domestic cases from two or more counties.  Family court is also frequently called “domestic court” and is not heard in State or Magistrate court.  But domestic cases can be appealed to the Georgia Court of Appeals and also heard by the Georgia Supreme Court.  If the case actually involved a constitutional law issue, it is possible a case could even be finally decided in the United States Supreme Court.  But as expected, this is a rare occurrence.

How long does a hearing or trial take?

Hearings are generally shorter than trials with the exception of the final hearing.  Your divorce or family law case may be broken down into a series of short hearings or temporary hearings.  Each hearing may require that you set aside a whole day for court, but most cases are heard in front of the judge for less than an hour.  In rare instances, a temporary hearing my take more than one day to be heard and decided.  However, a final trial is more likely to require more time to be heard and resolved, with a range of anywhere from one day to a week or more.  In general the length of the final hearing or trial is dependent on the amount of issues within the case, the complexity of the issues, and the amount of evidence presented by one or both parties.

Is it better to settle or go to trial?

If it is possible to achieve a positive outcome without it being necessary to go to trial then settling your case outside of court is the best strategy.  The advantages to Alternative Dispute Resolution (ADR) is that it is less financially and emotionally draining than a full scale trial.  Alternative Dispute Resolution (ADR) is not always possible and you will need to ultimately decide whether to settle or take a chance with a final trial.  If you feel that you have to agree to unfair terms in a settlement agreement then you should not allow yourself to feel pressured into having to comply with such terms that are against your interest.  In some cases in which a party is absolutely unwilling to negotiate and only provides ultimatums it is necessary for you to go to trial to achieve a just result.  In any case you should have an attorney present to assist you in making your decision when it comes to a settlement.  An experienced divorce and family law attorney should review a drafted agreement prior to you signing to ensure that the agreement is legally binding and that the language of the document is in accordance to what you verbally negotiated.  An experienced divorce and family law attorney can also help you decide if you should agree to settle or to take your case to trial.

Do I need to hire an attorney?

It is not required that either party retain an attorney in any civil action such as a divorce.  In accordance with Georgia law, either party may choose to represent him or herself in their own legal case; representing yourself in court means that you are “pro-se”and will present your own case to the court and fulfill the role of representing yourself.  If you are “pro-se” then you will be required to file your own paperwork and complete all court requirements for your case to go forward such as, but not limited to:

  • drafting and serving all required legal documents
  • serving and responding to discovery
  • scheduling, noticing and conducting depositions
  • drafting, serving and responding to Requests for Production
  • drafting, serving and responding to interrogatories
  • preparing, reviewing and presenting of evidence in hearings and the final trial
  • attending hearings and representing yourself in court
  • preparing for, attending, and representing yourself in the final trial
  • identifying, interviewing, and subpoenaing witnesses and expert witnesses
  • scheduling and attending mediation
  • negotiating with the other party, or the other party’s attorney
  • filing and stating legal objections in a timely manner

It is generally only advisable that an ordinary person represent themselves if they have a substantial legal background and have attended law school.  Mistakes in representing yourself “pro-se” can be costly as a judge will hold you personally responsible for knowing the full extent of the law and to have conducted your own legal research in response to your claims.  Unfortunately, being ignorant to the law will not protect you from judgments made against you if you choose to represent yourself.  It is very rare in family law cases to get a “do over” if you make a significant mistake.  Choosing to represent yourself is a big decision as you must be able to commit the time and effort to developing your own documents, trial strategy, and legal research.  You may be assisted in your legal studies by legal aid, self-help forms, and access to the legal library, but there will not be anyone to hold your hand and guide you through the process.  For most individuals preparing for a case is comparable to working a full-time job which is why most people elect to have legal representation in their family law divorce case.

An expert family law attorney will be able to provide you with the services necessary to fulfill your legal claim as efficiently as possible and without you having to invest large amounts of your own time.  Having an attorney represent your case ensures that your case is presented correctly and all legal avenues have been utilized.

The attorneys at Coleman Legal Group LLC have experience in all types of divorce and family law cases will be able to assist you in handling your divorce or other family law issues.  Call 770-609-1247 today to discuss your case and to schedule a consultation.