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Litigation refers to the entire legal
divorce action from the moment the first petition is filed
with a court until the last order is made by the court. However,
the term litigation is frequently used to refer to litigated
trial divorce matters - the arguments
in court in a contested divorce matter.
Divorce trials are
tried before a judge, not a jury. Typically, the original
peitition will be heard by a judge, but it may also be heard
by a court commissioner. Family court commissioners also often
hear interim motions filed during the divorce
process. The final hearing is before a judge.
If the parties are so widely separated on issues
that they cannot find a common ground, the court will ask
the attorneys to attempt to resolve the issues. If the attorneys
are unable to resolve the issues, then the court can and often
will order the parties into mediation
for the purpose of resolving issues. If the court appointed
mediator is unable to help the parties resolve the issues,
the court might ask the mediator
for his or her recommendation on the issue. An example of
this type of process often occurs with regard to child
custody.
In custody
situations, a court can order the parties into mediation.
The court can also order other processes in an effort to resolve
the issues, such as an assessment
by a GAL - Guardian Ad Litem.
The GAL represents the best interest of the minor child or
children. A guardian ad litem
reports to the court. Often times, the court asks the GAL
for his or her recommendation upon the findings. The court
is not bound to follow that recommendation, but they often
times will do so.
If mediation
is ordered, but the parties fail to agree, then the decision
will be up to the court. Often times, both parties are disappointed
when the court intervenes and makes a decision that the parties
must live with or appeal. Wisconsin is an automatic appeal
state, but those types of appeals are only granted for criminal
cases. In civil cases, such as divorce, the appellate courts
are not required to hear an appeal. As well, appeals are costly
processes.
For these reasons, and many that may only apply
to your case, it is usually in everyone's best interest to
resolve the disputes. However, agreements are not always possible
between spouses.
In some instances, a spouse may be very unfair,
make unfair offers, refuse to agree to any offer or settlement,
or just want his or her "day in court". Those types
of situations often leave only one alterhative - a trial.
Divorce trials are not the "Perry
Mason" type that are seen on TV. They are heard before
a judge, not a jury. But that is not to say that they are
light-hearted matters. Divorce trials can be very contentious.
At trial, the plaintiff will usually sit at
the table to the right of the judge, while the respondant
takes his or her seat at the table to the left of the judge.
The attorneys sit on the aisle side and the spouses sit next
to their respective divorce
attorney.
Both husband and wife will individually take
the stand, be sworn to tell the truth, and be questioned by
the judge. In heavily contested trials, both attorneys may
also question each spouse. Your attorney will remain at the
table where you were seated, or at a pedestal type podium
placed in the aisle in the middle of the two tables. Your
witnesses will sit in the seats behind you, and your spouse's
witnesses will do likewise on the other side of the courtroom.
(Sometimes, witnesses sit on the opposite side from the party
for whom they are present to give testimony. Don't let it
bother you if your witness is sitting on the opposite side
of the courtroom; it was likely mistakenly where they thought
they were supposed to sit).
The bayliff will ask everyone to rise when the
court goes into session. The judge will take his or her seat
at the bench. They bayliff may 'call' your case so that the
courtroom stenegrapher (court reporter) can enter the proper
case into the record. Usually, the trial will begin with the
judge reading the title of the case, and then asking the attorneys
to state their opening remarks.
The next steps depend entirely upon your individual
sitatuation and case. Usually, the process ensues with each
attorney questioning any witnesses. The plaintiff goes first,
then the respondant follows. Both you and your spouse will
take the stand to testify that you believe the marriage is
irretrievably broken and cannot be fixed. As well, the judge
will ask you to affirm your original affirmations to the court
(in the initial proceedings). At the end of the questioning,
the attorneys will make their closing remarks, if any. The
judge often will recess the court.
When the court is back in session, the judge
will render his decision and state the orders of the court.
If you are considering a divorce, require assistance
with the legal disputes between you and your domestic partner,
want to obtain legal or physical placement of your child,
want to invoke your rights as a grandparent to visit with
your grandchild, need to pursue a paternity order, or want
to speak with an attorney for legal advice on mediation or
how the laws of the state of Wisconsin will affect you, please
call Attorney Kathleen Reiley (608-246-8309) or send
her an email.
Related:
Wisconsin Courts
| Divorce Attorney |
Divorce Options
Wisconsin Divorce Law
| Wisconsin Custody
Law | Guardian Ad Litem -
GAL
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