by Samuel K. Darling, Bellevue Divorce and Family Law Attorney
This article explains how divorce and family law trials work in Washington State, and it’s written with the expectation you might try representing yourself, sometimes called “pro se” representation. Despite skimming over many details, this explains what we think the typical family law litigant most needs to know. It’s divided into eight parts, which you can skip to by clicking these links:
1) Overview of Trial,
2) Local Rules,
3) 35+ Days Before Trial,
4) Two Weeks Before Trial (the most important part),
5) Pretrial (the morning of trial),
6) Trial, and
7) Entry of Orders
I. Overview of Trial.
Unless the parties settle beforehand, divorce and family law cases end in a “bench trial”. That means the final decision come from a judge. There is no jury.
People typically begin preparing for trial over a month in advance, and those preparations become rigorous the two weeks prior to trial.
During the preparation stage, each party usually drafts a trial notebook for submission to the court and the other parties. Each copy of a trial notebook should contain, at a minimum, the parties’ trial brief and intended exhibits.
The trial itself has four stages: 1) opening statements (optional), 2) presentation of live testimony and exhibits, 3) closing arguments, and 4) the judge’s decision.
Opening statements are an opportunity to explain the case to the judge. Petitioner goes first, followed by respondent, followed by other parties, if any.
After opening statements, petitioner has the opportunity to present testimony and exhibits. This is done by calling witnesses forward to sit in front of the judge and answer questions.
When a party calls a witness to testify, it’s referred to as direct examination, or simply direct. Upon completion of petitioner’s direct examination of a witness, respondent can cross examine the same witness, sometimes simply called cross. If there are other parties, they can take turns crossing the witness as well. Then petitioner can ask questions of that same witness again, called re-direct. Finally the other parties can once again cross examine the witness, called re-cross. Typically the parties finish examining a witness – direct, cross, re-direct, and re-cross – before moving on to another witness. All petitioners witnesses go one after the other.
Respondent calls witnesses next. The process is essentially the same as when petitioner called witnesses. It begins with respondent’s direct examination of the witnesses, followed by petitioner and other parties cross examining the witness, followed by re-direct, and re-cross.
Once respondent has no more witnesses, other parties, if any, call theirs.
Parties introduce exhibits – usually documents – through the witnesses’ testimony. The witnesses have to provide foundation for the exhibits to come into evidence. Foundation means establishing basic information about an exhibit and the witness’s knowledge of it.
Parties sporadically object during presentation of witnesses and exhibits. For example, a party might say “Objection, hearsay”. The judge will then rule one whether the witnesses’ statement or the proffered exhibit should be allowed. The judge will usually give his or her decision by saying “sustained” or “denied”. These terms can be confusing even though we frequently see people use them on TV. “Sustained” means the court agrees with the objection, and the witness’s statement or exhibit is DISALLOWED. “Denied” means the court disagrees with the objection, and the witness’s statement or exhibit is “allowed in”. The phrase “allowed in” or “comes in” means the judge can consider the information when rendering his or her final decision in the case.
After each party has finished calling all his or her witnesses, the petitioner is allowed to call rebuttal witnesses. The process is the same – direct, cross, re-direct, and re-cross. Respondent can then call rebuttal witnesses, followed by other parties’ rebuttal witnesses, if any.
Once all parties have “rested” (are finished calling witnesses), it’s time for closing arguments. Each party is allowed to orally explain why he or she should win. As usual, petitioner goes first, then respondent, followed by any other parties.
At last, the judge renders a decision.
II. Local Rules.
Each of Washington’s counties have their own applicable local rules in addition to what this article explains. You can find each counties’ local rules here. You might try at least reading the local civil rule on trial assignment (usually local civil rule 40) and any local rules for divorce and family law proceedings (try searching the local rules for the keywords “divorce”, “family law”, and “domestic”). You should also follow any scheduling order the county court issues in your case. Scheduling orders sometimes create unique procedural requirements, such as the need to disclose witnesses and evidence before trial. The county’s family law facilitator(s) can help you follow the county’s scheduling orders and local court rules. Meeting with a family law facilitator costs about $10 per session, and facilitators are typically located in the county’s superior court building.
Aside from the scheduling order and local rules, this guide probably explains the most essential aspect of your upcoming trial.
III. 35+ Days Before Trial.
Ideally you should start planning your trial at least 35 days in advance. The focus of this early preparation is identifying your intended exhibits and witnesses, if you haven’t already. No state-level rule requires you to disclose your exhibits or witnesses to the other party prior to trial, but disclosure might be necessary under local rules, a scheduling order, or a discovery request. Our firm has or will write a separate article on discovery.
You’ll want to determine your exhibits and witnesses promptly even if there is no early disclosure requirement applicable to you. As explained next, you’ll need to know your intended exhibits and witnesses to draft an ER 904 notice and arrange witness testimony.
1. ER 904 Notice. If at all possible, you should submit an ER 904 notice at least 30 days before trial. ER 904 stands for Washington Evidence Rule 904. In short, this evidence rule allows you to propose to the opposing party your intended exhibits at least 30 days in advance of trial. Any documents on the list become automatically admissible at trial unless the other side objects to them within 14 days of receiving the notice.
The idea is to make it faster and easier for undisputed, trustworthy documents to come in. Documents that commonly come into evidence this way include bank statements, credit card statements, bills and invoices, the parties’ family pictures, medical records, text messages, and police reports.
Getting documents in this way can greatly increase your odds of winning, especially if you don’t have an attorney. It’s common for unrepresented parties to have extreme difficulty getting documents admitted into evidence at trial otherwise. The evidence rules for trial are complex and often require you to introduce documents using the right words and witnesses. For example, business documents that don’t come in through ER 904 usually need to be “authenticated” at trial by the business’s “records custodian”. That’s a mess you should avoid if you can. You might consider offering all your intended exhibits through ER 904 if you’re pro se.
Our firm’s template ER 904 notice is available here. Of course remove any reference to our firm. Then fill out the template, number and attach each of your exhibits, make copies, and have an adult (other than you) deliver a set directly to the opposing party or drop off the set at opposing counsel’s office. Have the same person deliver identical sets to all parties in the case, such as the Guardian ad Litem and the state prosecutor’s office, if they’re involved in the case. Save a set for yourself. Then court file the notice WITHOUT the attached exhibits. Have the person who delivered the documents take note of the date deliveries occurred, and include him or her among your intended trial witnesses. You’ll need him or her to testify about submitting the ER 904 notice on time.
If you need to object to any documents an opposing party has offered under ER 904, here is our firm’s template. Fill it out, deliver copies to the parties or their attorneys, keep a copy for yourself, and court file the original. Don’t object to all the other side’s documents out of spite. The trial judge can sanction you for objecting without basis.
2. Subpoena/Notify Witnesses. Once you’ve figured who you intend to call as your witnesses, make arrangements for them to testify live at trial. Arranging for testimony often entails nothing more than asking witnesses to show up in-person. Telephonic testimony, video testimony, affidavits, and written declarations generally aren’t allowed. Judges will occasionally allow telephonic or video testimony, but only in extreme circumstances, such as during the COVID pandemic.
You probably shouldn’t arrange for your children to testify, especially if they’re minors and the children of the opposing party. Washington calls it “putting the children in the middle”, and it can lead to a presumption you’re a bad parent.
If a witness might not show up voluntarily, subpoena him or her. You can find our firm’s template subpoena by clicking here. Only fill out the relevant sections. The subpoena should be served upon the witness directly if possible, and the person effecting service should fill out a document proving service took place. The template for proof of service is here. A trial subpoena subjects witnesses to possible arrest if they don’t show up to testify.
Subpoenas cannot force a witness to travel long distances. You can find the geographic limitations of subpoenas in CR 45(e)(2).
Obtaining deposition testimony from uncooperative witnesses who live far away is possible but difficult and expensive. An explanation would exceed the scope of this article unfortunately.
IV. Two Weeks Before Trial (the most important part).
Preparation can make all the difference, so attorneys (or at least good attorneys) often dedicate themselves exclusively to trial-related work during the week or two in advance. You should do the same if you want to perform well.
This is where you essentially draft nearly everything you intend to say and do at trial. Unexpected events always occur, which means these plans cannot be rigid. But your preparations should be thorough. The most famous and successful trial attorneys have one thing in common – careful and complete preparation.
It is also advisable to have a theme, or story, that you weave throughout the trial. A theme might be something such as “the other party is highly abusive and controlling”, “the other party lies a lot”, or “I just need enough financial help to finish college”. A story might be a simple, easy-to-summarize plot that the judge can relate to. Weave that theme or story into everything you do to the extent possible. Otherwise the facts you present at trial will seem unconnected to the judge, and he or she will be less likely to remember them. With any theme or story for trial, repeat it. Emphasize the key points in the evidence you present. The judge should be reciting your theme/story in his or her sleep after the trial. To accomplish this, you should weave it into all your drafting preparations.
The following are typical preparations during the two-week homestretch.
1. Trial Confirmation. Depending on the court’s local rules, you might need to “confirm” around two weeks prior to your trial date. Confirmation signals to the court that you intend to go forward with the trial. If confirmation is required and no party does it, the court usually strikes the trial date. Sometimes failure to confirm results in a judge dismissing the case in its entirety, forcing you to start over again. Generally you’ll have received something in writing warning you of the need to confirm, if applicable. To be on the safe side, you might ask the county’s family law facilitator whether confirmation is necessary and how it’s done.
2. Exhibits. Print and number your anticipated exhibits.
3. Outlines. You should draft outlines of what you intend to say at trial. Those outlines typically include the following:
A. Opening Statement. Opening statement is an opportunity to orally convey what type of case it is, what you are asking for, and the facts of the case. You are not allowed to “argue”. In this context, argue means to construe the facts, mention the law, or explain why you should win. You can simply state what happened, without coloration. If you state the right facts in the right order, the listener often emotionally sides with you anyhow.
Given that there is no jury, opening statements tend to be redundant of what you will write to the court in your trial brief. Family law attorneys often agree ahead of time to waive opening statements in an effort to reduce preparation time.
If you do not waive your opening statement, you should expect to spend significant time on it. Create a bullet point outline, and practice, practice, practice. Don’t expect to read it to the judge. Reading an opening statement largely defeats the point and can even cause the judge annoyance. Instead rehearse enough that you can look the judge in the eye and speak with inflection.
B. Direct Examination Questions for Each Witness You Intend to Call. Direct examination is the term for asking questions of yourself and your own witnesses. You should outline the questions you intend to ask, often with a bullet point list or on some index cards. This ensures you don’t waste the court’s time thinking of what to say at trial. Wasting time makes judges grumpy.
Leading questions generally aren’t allowed on direct examination. A leading question is one that suggests the answer to the witness, essentially leading him or her to answer with the details you want. Yes or no questions are often leading, but not always. Typically a question is leading if it includes significant information that has not yet come into evidence. This is probably leading: “John got angry, start yelling, and then punch my son in the nose two weeks ago, correct?” This probably is not: “Has John hit my children?” Admittedly, the determination of whether a question is leading is a gray area.
Judges sometimes grant permission to ask leading questions on direct if your witness demonstrates evasiveness or hostility towards you. This might happen if you call one of the opposing party’s family members as a witness to a domestic violence incident. Ask the judge for “permission to treat the witness as hostile.” If the judge grants your request, leading questions are allowed.
Witnesses generally cannot testify about hearsay. Hearsay is an out-of-court statement offered to prove the truth of the statement. It’s a difficult and nuanced definition, but typically hearsay means relating someone else’s out-of-court communication. For example, “Sally said John hit her” is probably hearsay. The speaker doesn’t have firsthand knowledge of whether John hit Sally. The speaker is retelling what Sally said. You’d need someone who saw the event or the physical aftermath to explain what he or she saw. Organize your questions to avoid hearsay if possible.
There are many exceptions to the hearsay rule, most of which are relatively rare. The most common exception is a statement by the other party, called “admission of a party opponent”. A witness can testify about what the other side communicated. For example, in a divorce you could say “My spouse said John hit Sally.”
Introduce all your intended exhibits through your own testimony or your witnesses, if possible. Introducing the exhibits through your witnesses is easier than trying to do it through the other side’s. Presumably your witnesses will want to cooperate; the other side’s might not.
Admission of ER 904 documents can often be done by agreement with the other side on the record. If not, you can call as witness the person who served the ER 904 notice. You just need to establish that the documents were served on time and the other side made no objection within the 14-day window. Then ask the court to admit the documents into evidence.
Introducing exhibits that don’t come in through ER 904 can be trickier, because you need to establish foundation. Generally the following script will work:
[You:] Your Honor, I am handing to the witness what I had pre-marked as document [#]. [Hand the document to the witness.]
[You to the witness:] Do you recognize this document?
[Witness:] Yes.
[You to the witness:] What is it?
[Witness says what the document is.]
[You to the witness:] How do you know?
[Witness explains how he or she knows about the document, such as if he or she drafted it, created, etc.]
[You:] I move to admit this into evidence.
[Judge rules on whether to admit.]
Usually written documents should be introduced through someone with first-hand knowledge of them, such as the person who drafted them, created them, or can verify circumstances suggesting the opposing party drafted or created them.
Practice with your witnesses so you know what they’ll answer to your questions. At trial, you should never ask a witness a question unless you know the answer.
C. Cross Examination of Opposing Party’s Anticipated Witnesses. Cross examination is when you pose questions to the other side and his or her witnesses. The main difference between direct and cross is you can ask leading questions. In fact, most questions on cross are leading. Done right, it’s almost as if you’re testifying and simply asking the other side to confirm. Never ask a question on cross unless you know the answer and can prove it with a reliable document. Otherwise the question is likely to lead to an answer that hurts your position. Take the following script as an example of effective cross:
[You to the opposing party:] Isn’t it true you punched our son in the head two weeks ago?
[Opposing party:] No, that’s not true.
[You:] Your Honor, I’m handing the witness Exhibit 10.
[You hand the witness a police incident report.]
[You:] What is this document?
[Opposing party:] I dunno.
[You:] Isn’t this the police incident report from two weeks ago?
[Opposing party:] Maybe.
[You:] Would you mind flipping to page two, lines 11-13?
[Opposing party flips to the page.]
[You:] Isn’t that your statement to the police?
[Opposing party:] It might be.
[You:] Isn’t that your name and signature at the bottom of the page?
[Opposing party:] Maybe.
[You:] On lines 11-13, doesn’t it say, quote “During the fight, I got so mad I punched him in the nose”?
[Opposing party:] Maybe.
You aren’t supposed to harass or argue with a witness on cross. Questions can be deemed argumentative. Save argument for closing arguments, which is next.
D. Closing Argument. Closing argument is your last word to the judge before he or she renders a decision. In it, you can talk about the facts, the law, and why you think you should win. You cannot refer to facts that weren’t part of allowed oral testimony or in the admitted exhibits.
Some attorneys prefer drafting their closing arguments in advance, ensuring adequate time to write and rehearse. Others prefer waiting until the end of trial, so they can structure the argument according to what transpires. Like with opening statements, you should avoid reading to the judge if possible. Use an outline, try to look the judge in the eye, and speak with inflection. Speak slowly. Speaking slowly helps with your delivery and allows the judge to take notes. Judges often write their thoughts nonstop during closing arguments.
4. Trial Brief. Your trial brief is what you submit in writing to the judge (and other parties). It should tell the court your position, the most relevant facts, and any law you’d like to bring to the court’s attention. Click here for an example.
Along with your trial brief, you should provide your proposed parenting plan (if relevant), your proposed child support worksheets (if relevant), your financial declaration (if any financial issues are at stake), and an asset/debt spreadsheet (if dividing property). Click here for an example asset/debt spreadsheet. Include the parenting plan, proposed child support worksheets, financial declaration, and asset/debt spreadsheet as exhibits in addition to being trial brief attachments.
5. Motions in Limine. Motions in limine are motions at the beginning of trial. Usually they pertain to evidentiary issues, such as whether to allow witness to testify by phone. Those same issues can be addressed when they arise during the trial, but presenting them as motions in limine can be better for you and the court, because it provides an opportunity to fully brief the court on the issue. Click here for an example motion in limine. Self-represented parties rarely file motions in limine, but they should if they have the time.
6. Pocket Briefs. A pocket brief is like a motion in limine’s little brother. It’s an evidentiary brief you can use during the middle of the case if an anticipated evidentiary issue arises. Click here for an example. Pocket briefs are rare for both attorneys and self-represented parties, but they can provide a significant advantage. Our firm uses them regularly.
7. Trial Notebook. A trial notebook is an organized compilation of the documents you are supposed to provide to everyone at the beginning of trial. It typically consists of a table of contents, your trial brief (and attachments, if any), your motion(s) in limine, a numbered list of your intended exhibits, and each of your exhibits.
Usually you prepare four sets – one for the opposing party, a working copy for the judge, the original for the clerk (the official set), and one for yourself. If there are additional parties, such as a GAL or state prosecutor, you should prepare sets for them as well. Judges appreciate if you hole-punch each set, place each set in its own three-ring binder, and tab your exhibits with their numbers.
V. Pretrial (the day of trial).
Some counties assign cases to trial judges in advance of trial. In other counties, you show up for “trial call” on the morning of your trial date for assignment to a judge. Once you learn of your judge, you walk to his or her courtroom with all your documents.
Unless local rules say otherwise, you give the trial notebooks to their intended recipients when you reach your assigned judge’s courtroom. If local rules did not require advance notice of motions in limine, you should inform the clerk if you have any motions you want heard. Then you wait, often for several hours, while everyone reviews each other’s trial notebooks. The judge usually reviews them in an office behind the courtroom. Take this chance to review the other side’s motions in limine and exhibits. Make notes of what you intend to say in response to the motion(s) and any objections you intend to make to exhibits. You might want to speak with opposing counsel about agreeing to the admission of exhibits you don’t intend to object to.
In some counties, such as King County, much of this information will have been exchanged in advance of trial, and there will be no need to review trial notebooks. Trial begins immediately.
VI. Trial.
Honestly, most of the work is done by the time you get to this point. You’ve already prepared everything, and now you just put that preparation into play in the following order:
1. Opening Statements. As mentioned above, opening statements are optional. You can object to the opposing party’s opening statement if he or she goes beyond the scope of what is allowed. The objection is typically phased, “objection, argumentative.”
2. Motions in Limine. Each party is allowed to present his or her motions in limine, the other party is allowed to orally respond, and the court makes rulings.
3. Testimony and Evidence. After any motions in limine, petitioner is allowed to put on his or her case. As mentioned above, this means petitioner calls each of his or her witnesses for direct examination. After direct examination, there may be cross, re-direct, and re-cross. Re-direct is limited to asking questions that rebut cross examination, and re-direct is similarly limited to rebutting or clarifying the answers to re-direct. Re-direct and re-cross are rare. Often our firm’s attorneys don’t even cross, because we can usually get the same information in through our own witnesses, who are more cooperative.
Then the other parties are allowed to put on witnesses, potentially followed by rebuttal witnesses. See sections I (overview) and IV(3)(b)&(c) (direct and cross examination) for a reminder of how this works.
There are countless objections at this stage in the case, but the most common are “hearsay” and “foundation”. As discussed above, hearsay typically means the witness has related what someone said rather than relating his or her first-hand knowledge. A party can also object to a document as hearsay if it contains an out-of-court statement. That’s yet another reason you hopefully got your documents in through ER 904, discussed in section III(1), above.
Foundation usually means the witness has not demonstrated he or she has sufficient knowledge to introduce an exhibit. If you encounter this objection, remember the script from section IV(3)(b), above. You can often cure an objection and still get the document or information. You do so by asking the witness the appropriate question(s) to overcome the basis for the objection.
4. Closing Arguments. Once all parties have rested, the court usually takes a short recess or adjourns for the parties to finalize their closing arguments. Once trial resumes, petitioner presents oral argument first, followed by respondent. Then the court typically gives petitioner the opportunity for a short rebuttal, called a reply.
5. Judge’s Decision. The judge usually adjourns to review exhibits and draft an oral or memorandum decision. The decision is usually ready several days or weeks later. Memorandum decisions are typically sent to the parties, so there is no need to return to the courtroom for the result. If the judge elects to render an oral decision, the parties return to the courtroom upon a date set by the judge. The parties take notes while the judge states or reads the oral decision. Don’t worry too much about getting all the information in your notes. A court reporter transcribes the oral decision, and either party can order the transcript.
VII. Entering Orders.
After the decision is rendered, the substantially prevailing party customarily drafts final orders for the court’s signature. You can usually find templates for the final orders on the state’s mandatory forms website. For example, a divorce trial would often end with entry of a decree, findings of fact, parenting plan, child support order, and child support worksheets, which you can find in this section of the state’s mandatory forms website. Once the prevailing party has drafted the orders, he or she sends them to the other party to review. Typically the other party requests changes. If the parties can agree to the wording of the final orders, they sign and submit them to the judge for entry. If they cannot agree, the judge or one of the parties sets a presentation hearing, where the judge resolves the drafting disputes and signs the orders into effect. If the court is entering a parenting plan, the parties must submit to a JIS background check so the judge can determine whether the child(ren) would be safe in each parties’ care. The court will typically walk a pro se party through the JIS process.
That’s it! We hope you found this article useful. We at Genesis believe in making high quality legal information freely available on the internet. You can find many more articles, guides, and videos by clicking our website’s resources tab.
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