For some couples going through a divorce, key decisions about finances and the children may end up being decided by a judge at trial. This happens if you and your spouse cannot agree on how to resolve issues between you both or with the help of a mediator. For many couples entering the world of divorce, trial is the last thing on their minds and many individuals cannot believe that their divorce has to be decided by trial. The reality though, is that if you and your spouse cannot agree on key issues, your case will proceed to trial in Hong Kong and these decisions will be made by one person: a judge. So, let’s discuss trial and what you can expect leading up to trial:
1. How Did You Get Here?
The first question many couples ask, is how in the world did they end up going to trial in a divorce?! When couples cannot agree on key issues mainly related to ancillary relief (finances) and the children, they will have no choice but to continue through the Court process in Hong Kong which ultimately will end up at trial if decisions/agreements cannot be reached by the parties in the meantime. For many couples, trial is burdensome not only because it is extremely expensive, but also because it is emotionally taxing on the couple, but also the children and the effect on them of having parents who have to endure the lead up to and during the trial. Many solicitors will thus encourage couples to try and mediate during the divorce and come to an agreement on issues by way of a Consent Summons, so that the decision related to the breakup is made by the couple and not by a judge. Unfortunately, this is not necessarily an easy feat for many couples as divorce can bring out a lot of resentment and anger. However, if you are able to put the anger and resentment aside and come up with a compromise between you and your soon-to-be ex-spouse, this will always be encouraged to avoid trial.
2. Preparations for Trial
Prior to trial, your solicitor and barrister team will be hard at work preparing all the necessary documents to be filed with the Court ahead of the trial. Many times, the trial judge will hold a Pre-Trial Review hearing, to get a better understanding of the issues to be decided at trial and what work needs to be done ahead of time. At a Pre-Trial review hearing, the judge will provide each side with deadlines for filings and any other deadlines the judge sees fit. Your solicitor and barrister will need to adhere to the deadlines set out by the court and it will require a lot of discussion with the other side so that both sides are fully prepared by the trial date. Closer to the trial, your solicitor and barrister team will also hold several meetings with you to prepare you for trial and the testimony you will be giving. They will run through the types of questions the other side may ask you on examination and how you should conduct yourself whilst on the witness stand.
3. What to Expect at Trial
Your solicitor and barrister team will handle each day with expertise and ease so as to make you feel comfortable and in good hands. The trial will be emotionally taxing as you and your spouse will be taking the stand and will be examined not only by your barrister but by the other party’s barrister as well. It is important for you to remain in constant communication and in step with your solicitor and barrister team so that you understand what is happening each day and talk to them about how the trial is proceeding. It is important to note that the judge will require you to handle the proceedings with respect and dignity. This means wearing clothes that are conservative and respectful. It is also important that you do not burst out with your thoughts and comments when your ex-spouse is on the stand or when his/her barrister is asking questions. You should answer questions directly and succinctly and not make personal attacks on your spouse as it is not the forum to do so, rather the judge simply wants each party to present their side so he/she can make the best and informed decision for you and your family.
4. Costs For Trial
What many couples do not realize, is that trial is extremely expensive. Leading up to the trial, there are hours upon hours of preparation by your legal team. Your legal team will often include a team of solicitors which can include partners, associates and trainees all assisting on the case. Your team may also include senior and junior barristers, depending on the complexity of your case and barristers will require their fees to be paid well in advance of the trial. Depending on your case, you and your spouse may be responsible for fees related to experts and reports by experts on issues related to finances and the children. There are also fixed costs to consider as well, including fees for document preparation such as photocopying and filing of documents and the related court fees. Finally, if you are unable to succeed at trial and are the losing party, you may also be responsible for the fees and costs incurred by the other party. Thus, you could potentially be responsible not only for your own fees and costs, but the fees and costs of your ex-spouse. The costs for trial can be overwhelming and should not be taken lightly. You should also consider that if you or your spouse lose at trial, you may have an opportunity to appeal and this too will be extremely costly as you will remain in the litigation process and continue to incur fees for an appeal. Thus, it is something to carefully consider before deciding to move forward with trial.
5. Can You Stop Your Trial?
Like a divorce, a trial can also be stopped before it goes forward. Your solicitor should be speaking to you about options to prevent the trial train from moving forward at epic speed. Other options that you could consider to stop a trial from going forward, is mediation, private dispute resolution with a judge or retired judge, or even sitting down informally with your ex-spouse and coming up with an agreement that works for you both preventing potential loss as a result of a trial.
Sometimes trial cannot be avoided especially if you are in a heavily litigious divorce and are dealing with a difficult ex-spouse. However, if there are certain issues you can compromise on and work on resolving with your ex-spouse, do so and put as much attention and effort into a resolution as trial can have devastating emotional effects on you and your children. The time spent to prepare for trial is also time that cannot be returned to you so it is important to consider all of this before you forge ahead with a trial.
