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This article is written by Aanika Aery, currently pursuing B.B.A. LLB from Symbiosis Law School, Noida. This is an exhaustive article which deals with the stages and the various phases of a contested divorce.
Marriage is a celebrated union between two people leading to cooperation and harmony. But this legal relationship does not often result in a better and safer present for them, resulting in a divorce. A divorce can be caused due to a few reasons and can be either a mutual divorce or a contested divorce.
Types of divorce under Hindu Law
- Mutual divorce: Section 13-B regulates the mutual divorce under the Hindu Marriage Act. As the name suggests, all parties agree on each other and agree on a patient separation in a mutual divorce, example- The husband and wife will predetermine the issues surrounding maintenance and custody of children. One condition is mutual consent, and the other requires that they live apart for a period of at least one year. The other requires a mutual divorce.
- Contested divorce: When each partner begins to divorce, this is referred to as a Divorce disputed. The grounds for seeking an impugned divorce, some of which include, abuse, conversion of faith, insane thoughts, infirmity or any spouse, are unheard of for more than seven years, are given in Section 13 of the Hindu Marriage Act, 1955.
Concept of ‘irretrievable breakdown of marriage’
Irrevocable marriage breakup literally means that couples can’t live peacefully and happily together.
When the relationship reaches a point at which the marriage cannot be fixed, the dissolution of the marriage is considered irretrievable.
For cases such as those between the wife and the husband, the couple lives separately and regular conflicts or one partner has an extra-marital affair leads to a divorce.
There is no codified law at this point which provides for an irreparable divorce or breakup of a marriage. This is not mutually agreed to divorce as it relies not on the wishes of the partners, but on the facts and proof to determine whether or not relationships can be saved.
Divorce cannot only be given for the irretrievable dissolution of the marriage if it is the fault of the party seeking divorce on that ground. In cases where they have made claims that the marriage is basically dead and the parties cannot work together, divorce can be given in the first place.
Grounds for a contested divorce
- Adultery-This is a sexual crime in which one of the partners has a sexual relationship outside marriage.
- Cruelty-It is described as a deliberate act which can endanger the body, limb, life and mental health. It can lead to suffering, mental or physical violence, torture.
- Desertion– If a partner leaves another partner willingly, without any intention to return, it’s known as Desertion. It can be a legal ground for divorce for more than two years.
- Religious Conversion-If one of the partners is no longer a Hindu, then the justification for divorce may be found in a Hindu marriage.
- Mental condition– Mental illness includes mental disease, mental health or mental disorder that is an abnormally violent person.
- Leprosy– Leprosy is an infectious and chronic disease-causing skin lesion and nerve damage. Leprosy is a contagious disease.
- A partner who is not heard of– If a partner is not heard about for seven years, then the basis for divorce can be considered.
- World renunciation – The ‘Renunciation of the Earth’ is a cause of divorce under Hindu law if one of the partners has left the earth and is in a holy order.
Other grounds of divorce include-
- The partner was guilty of adultery, sodomy or animal worship.
- Until the age of 15, the woman was married.
- The court grants a maintenance decree or order to the woman and they don’t stay together for more than a year.
Where the petition of divorce has to be filed/ Jurisdiction
Under Section 19 of the Hindu Marriage Act of 1950, a plea for divorce may be made before the District Court,
- in the limits of the local area in which the ordinary civil jurisdiction is centred on marriage was solemnised or (where the ceremony was properly held) the respondent resides, at the time the petition was filed, or (if the two parties are filing a petition) the respondent resides.
- The marrying parties last reside together or (if a husband and a wife live in a different location, other than their original residence, they may make a claim in a court that is qualified in that location; the last residing means that the parties must have resided in the same place for a significant duration and not merely visited the place at any time.) If you are a wife of the petitioner you can apply for a divorce at your residence.)
- The petitioner shall be resident at the time the petition was filed in a case where, at that time, the respondent was resident outside the territories protected by this Act or where those persons who, presumably, if he were alive had not heard of him, for a span of seven or more years, being alive. (This is an essential ground as it gives freedom to any partner, whether his partner has abandoned her or is not the Indian court’s competence, to file a petition at his or her place of residence.)
Considerations during divorce
- Child Custody-If either parent is not willing to afford his day-to-day expenses, the other parent will afford him a certain amount upon divorce. -Who is a child custody partner? The agreement between the partners (husband and wife) is subject to each other.
- Land and Asset Settlement — Land and asset ownership rights between the parties (male and female).
- Residence Facts of marriage between husband and wife
- Pictures of the husbands and wives
- Proofs indicating that mediation has been ineffective and that it can not be reconciled between the parties.
- Information showing that for more than one year husband and wife have live separately Descriptions of husband’s and wife’s occupation and income today.
- Three financial years’ income tax statements.
- Information about the couple’s family history.
- The property details and the spouse’s property.
- The provisions on which the divorce is filed.
- Step 1: Drafting and submission of the petition (submissions for divorce) -The application drafted must be submitted to a family court together with the corresponding court fees. For the preparation of your petition, you need the right advice and guidance from a reputable and competent divorce lawyer.
- Step 2: A summons is issued by a court of law to the second party, usually sent by a speed post. Summons is issued by a court to be delivered by speed post. The purpose of a summons is to remind the other party that their wife initiated the divorce process. The appeal is submitted to the wife if the husband has started the proceedings.
- Step 3: Response (to Trial) -The party shall be present at the Trial on the day specified in the summons after the summons has been issued. If the party refuses to attend, even if the court issues an order and ends the divorce proceedings the court shall offer an opportunity to hear.
- Step 4: Court trial- All parties must provide sufficient proof and evidence at the Court in this stage. The test and cross-examinations of the parties, witnesses and testimony must be performed before the courts by respective lawyers. This is an important step in the divorce process.
Interim orders – Any party can file before the court a temporary petition regarding maintenance and custody of the child by interim orders. It can be charged after the trial and the legal proceedings have been concluded. The order remains in effect until the divorce becomes final. Not every divorce case has been passed through provisional orders. An appeal is discretionary and relies solely on the partner (male or female).
- Step 5: Argument -The two sides named their respective claimants, on the basis of documentary proof submitted and testimony, to appeal before the judge. Phase 5: Argument The experience and actions of lawyers is a lot to benefit the claim.
- Step 6: Final Order(Finishing divorce)- Upon effective completion of all the previously listed steps, the Court must issue a final order. If any party is not happy with the final order, the same can be questioned in superior courts.
Divorce on the grounds of cruelty
Cruelty may be emotional or physical in divorce proceedings. It is easy to understand physical brutality because the same is evident and noticeable. The most common explanation for pursuing disputed divorce is mental cruelties.
Mental cruelty is the variable condition between spouses or individuals, and between spouses or individuals.
In the case of Samar Ghosh versus Jaya Ghosh, the broader definition and actions of cruelty were set out in the Supreme Court of India, which are just as exhaustive as possible. They are as follows:
- (i) Extreme emotional pain, anguish and misery may be brought under the specific boundaries of emotional abuse if the parties’ full matrimonial lives had been taken into account so that they would not be able to live with each other.
- (ii) An extensive evaluation of the parties’ entire matrimonial lives shows that the situation is such that the wrong party is not reasonably required to conduct such behaviour.
- (iii) Plain coldness and lack of affection can not lead to cruelness, constant rude language, petulant behaviour, indifference and neglect so that married life can be totally unbearable to the other partner.
(iv) The torture of mind is mental cruelty. The sense of deep pain, deceit and anger in one wife induced for a long time by the actions of the others can contribute to mental cruelty.
(v) The long-term course, calculated to induce pain, or wretched woman’s life, of toxic and degrading medicine.
(vi) The unjustifiable actions and conduct of one partner that affects the other spouse’s physical and mental health have been maintained. The reproached care and fear or anxiety arising from it must be quite serious, significant and severe.
- (vii) Mental cruelness can also include persistent reprehensible behaviour, ignored experiments, indifference, or total removal from the usual standard of spousal kindness causing impaired mental health or sadistic enjoyment.
- (viii) Behaviour that creates unease and discord and emotional distress should not be a justification for the grant of divorce due to mental cruelness must be much better than jealousy, egotism, possessiveness.
- (ix) Pure trivial irritations, conflict, natural wear and tear in married life that occur daily, for reasons of mental cruelties it would not be enough to require a divorce.
(x) Married life should be analyzed in its entirety and some single events over the years should not be cruel. The abuse will continue for such a long time until the relationship has deteriorated to the point that it is exceedingly difficult for the wrong party to continue living with the other party because of the actions and behaviour of the partner, which may result in mental cruelty.
- (xi) Where a husband submits himself to a sterilization operation for no medical purpose, with his wife’s permission and without knowledge, and similarly where the woman is subject to a vasectomy or abortion for no medical reason or without her husband’s consent or knowledge, the wife’s actions will lead to mental cruelties.
- (xii) Psychological abuse may be the result of a unilateral rejection decision of a significant duration of intercourse without physical impairment or legitimate cause.
- (xiii) The unilateral decision, after marriage, of either husband or wife not to have a child may be cruelty.
(xiv) It can be fairly inferred that the matrimonial bond has not been remediated where a long period of continuous separation has been formed. Marriage is a myth, but a legal connection is recognized.
The rule in these situations does not protect the sanctity of marriage by failing to sever it; on the contrary, it demonstrates a lack of consideration for the parties’ feelings and emotions.
It can lead to mental violence in these cases.
Duration for a divorce
The divorce is granted by the court in approximately 18- 24 months. However, the spouses can withdraw their divorce petition during this 18 months period and no divorce will be granted by the court. Each spouse can withdraw the request for a joint divorce and apply the contested divorce by a separate divorce advocate.
The petition for divorce shall be submitted in the form of an affidavit to a family tribunal. On submission of the petition and completion of the court’s formalities, the matter is normally adjourned for a six-month period.
Following the six-month time limit, the parties will appear again before the court for further transmission of the second motion to affirm the mutual consent submitted previously.
The divorce order shall be issued by the judge only after these proceedings have been completed.
Proceedings according to religion
Divorce laws are special in India for various faiths. There was a need to create firm laws which focused on women’s rights in divorce in India, the most recent modification brought the following changes. Each of the following laws regulates its respective religions.
- Christians- It is, Divorce Act-1869 and The Indian Christian Marriage Act, 1872.
- Parsis- It is The Parsi Marriage & Divorce Act-1936.
- Hindus- Hindu Marriage Act, 1955, which includes Sikh, Jain, Budh.
- Muslims- The divorce procedure is governed by Personnel laws of Divorce & The Dissolution of Marriage Act, 1939 & The Muslim Women (Protection of Rights on Divorce) Act, 1986.
- For all the other religion and common issues, the Special Marriage Act, 1954 is followed.
Women have a 50% stake in a man’s residential property in the case of divorce.
The Final Divorce Decree
By WomansDivorce.com | Updated July 9, 2021
Just what is a final divorce decree and when does it become effective? We get a lot of questions from women wondering when their divorce will be final or if an old divorce petition was ever finalized. That’s understandable because of the numerous steps in the divorce process. Even if you’ve reached a settlement and agree on everything, it still needs to be approved by the court.
For a divorce to be finalized, it must first be approved and signed by a judge.
If it’s approved by the judge, a court order (judgment) will be issued outlining the details of the divorce, including the case number, names of the parties, the settlement agreement, and the specifics of support and child custody. This court order terminates the marriage and becomes an enforceable divorce decree once it's filed with the court clerk.
It’s important to note that it can take a while for a divorce judgment to be signed by a judge due to back-logged court dockets. Also, some states also have a waiting period before a judge approves and signs the judgment to allow for appeals.
Even after a judge signs the order, the divorce is not actually finalized until it the court clerk enters the judgment into court records. The documents will be date stamped and copies will be mailed to each party (or the lawyers representing the parties). The effective date of divorce will be the date entered by the court clerk, unless your state has a waiting period.
After everything is over, it’s a good idea to keep a copy of your final divorce decree. First of all, it’s a court order. If there are conditions of your settlement agreement which need to be met, it’s a good idea to keep a copy on file in case you need to file for enforcement or modification later on.
You may also need it to legally change your name, apply for a mortgage, remarry in some states, or apply for social security later on. If by chance you no longer have a copy of your divorce decree, you can request a copy from the court where the divorce was finalized.
This overview outlines the basics of the final divorce decree. Below you will find answers to other questions that further explain what to expect.
Questions about the final divorce decree
Can a divorce be finalized even if the divorce process was never completed?
Amanda's Question: My ex and I separated 8 years ago. We started the divorce process, but recently I found out it was never finalized. Does the divorce eventually become final after a certain amount of time?
Trial of a Divorce Case
An admission of authenticity can also be utilized at a pre-trial conference. The rule that governs this method is Fed. R. Civ. P. 16(c)(2)(c). This rule states that:
(c)(2) Matters for Consideration. At any pre-trial conference, the court may consider and take appropriate action of the following matters:
(c) Obtaining admissions and stipulations about facts and documents to avoid unnecessary proof and ruling in advance on the admissibility of evidence.
The last traditional method could be utilized is attaching of a document as an
appendix to pleadings. The rule that governs this method is Fed. R. Civ. P. 10(c). The rule states that:
(c) Adoption by Reference; Exhibits. A statement in a pleading may be adopted by reference elsewhere in the same pleading or in any other pleading or motion. A copy of a written instrument that is an exhibit to a pleading is part of the pleading for all purposes.
It is important to keep in mind that when reviewing all of the methods for evidence to become authenticated and admitted, there needs to be thought given to the most appropriate method given the type of evidence you are trying to authenticate.
Judicial Notice of Electronic Evidence
An additional method that is often overlooked is utilizing Fed. R. Evid. 201(b). This rule
governs the judicial notice of evidence. The purpose of this rule is to alleviate the expenditure of resources during the discovery and authentication process.
For the evidence to be authenticated in this manner, Fed. R. Evid. 201(b) states that the fact must not be subject to reasonable dispute.
A perfect case to demonstrate the use of judicial notice in a more contemporary scope is United States v. Brooks.
In Brooks, the court analyzed the admissibility of global positioning system (GPS) data
that was presented at trial. The defendant challenged this data, noting that it was subject to reasonable dispute.
The court took judicial notice of the reliability and accuracy of GPS data, stating that, “[c]ourts routinely rely on GPS technology to supervise individuals on probation […] and, in assessing the Fourth Amendment constraints associated with GPS tracking, courts generally have assumed the technology’s accuracy.”
The courts have admitted government websites and any data include therein. This is
mainly because the information can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned. The government data and information from websites, might fall under self-authentication of Fed. R. Evid. 902.
Courts have taken time to analyze the admissibility of information from private websites
under the use of judicial notice. The case that embodies this concept is O’Toole v. Northrup Grumman Corporation.
In O’Toole, the court looked at judicial notice of the lower court recognizing the facts of
a retirement fund’s earning history from the respondent’s website.
The lower court reasoned that the court should take judicial notice of these facts regarding retirement fund earnings because the respondent could not reasonably explain how it would otherwise be unreliable and inaccurate. The 10th Circuit Court recognized the reasoning of the lower court as valid, and affirmed the lower’s court’s judicial notice.
An attorney could also use affidavits to authenticate evidence. This is particularly appropriate for moving for summary judgment under Fed. R. Civ. P. 56. The affidavit evidence normally would face hearsay issues, but not when submitted in a summary judgment context.
Accumulation of Evidence to Prove Authenticity
An additional method to prove authenticity is the accumulation of evidence. This concept is applicable in a general context, as well as a more specific context.
Before we get into the details of accumulation of evidence to prove authenticity, it is important to recall Fed. R. Evid.
901, which states that authentication standards are satisfied by evidence sufficient to support a finding that the matter in question is what the proponent claims it to be.
A Divorce Timeline
When people decide to get a divorce, they usually don't know what to expect.
After all, divorce is a complicated legal process, and it can be full of unpleasant surprises and frustrating delays.
It's always helpful to review a legal divorce timeline to give you a general understanding of what's likely to happen so you can help you feel more comfortable at an uncomfortable time.
The following chronology gives a general idea of how an average divorce will proceed, although your divorce may not follow the exact timeline below because of specific issues between you and your spouse or because of specific laws in your state.
Learn more about state-specific laws on our divorce law legal answers page.
1. Starting the Divorce Legal Process
To start off the divorce, one of the spouses gets a lawyer, who writes up a petition (also known as a complaint), which is a legal document that says why the spouse wants a divorce and how he or she wants to settle finances, custody, and other issues.
2. Filing and Serving the Complaint
The lawyer files the petition or complaint with the court. The lawyer or the court makes sure that the petition/complaint is served on the other spouse, together with a summons that requires that spouse's response.
3. Receiving Your Spouse's Answer to the Divorce Complaint
The served spouse has to answer within a certain time (usually about three weeks). The answer says whether or not the served spouse agrees with the petition/complaint.
If he or she doesn't answer the petition/complaint, the court assumes that he or she agrees to its terms.
The answer (also called a response) indicates how the served spouse would prefer to deal with divorce decisions.
4. Initiating the Property Division Process and Exchanging Documents
The couple exchanges documents and information on issues such as property and income. By examining this information, the couple and the court can decide how to divide up property and how to deal with child support and alimony.
5. Entering into Mediation or Settlement
Sometimes, the couple can voluntarily resolve all their issues through mediation or settlement. Some states require that divorcing couples go through this process.
If a settlement is reached, the settlement agreement is shown to a judge at an informal hearing. The judge will ask a few basic factual questions and whether each party understands and chooses to sign the agreement.
6. Obtaining Court Approval for Any Settlement Agreement
If the judge approves the agreement, he or she gives the couple a divorce decree that shows what they agreed to. If he or she does not approve it, or if the couple does not reach an agreement, the case will go to trial.
7. Proceeding to a Divorce Trial
At trial, attorneys present evidence and arguments for each side, and the judge decides the unresolved issues, including child custody and visitation, child and spousal support, and property division. Once the judge has reached his or her decision, the judge grants the divorce.
8. Appealing the Judge's Decision
Either or both spouses can appeal a judge's decision to a higher court. But it's unusual for an appeals court to overturn a judge's decision. Also, remember that settlements usually cannot be appealed if both spouses agree to their terms. However, after trial, if there is something that needs to change, you may be able to modify the divorce decree.
A Divorce Timeline: Wrap-Up
It's hard to say how long all these steps will take in your case and in your state. The entire process can take from as little as a few months, to as long as several years. Generally speaking, the more the couple can cooperate and agree to reasonable compromises, the smoother and faster the divorce will go.
Successfully Navigate Your Divorce Timeline with an Experienced Attorney
A knowledgeable divorce attorney can safely guide you through the divorce timeline of events and protect your financial security, often spotting issues before they become real problems. From initial coaching on what documents to bring to your first consultation, all the way through guidance on hearings, trials, and court orders, a divorce attorney will fight for your best interests.
Crown Court process & procedure | Lawtons Solicitors UK
Nick Titchener, director and solicitor advocate at London Criminal Defence Solicitors, Lawtons, discusses the Crown Court procedure and process under UK law.
If you find yourself charged with a criminal offence, your first appearance in court would be before the local magistrates’ court. At that hearing, a decision would be made as to whether your case should remain in the magistrates’ court or be allocated to the Crown Court to be heard.
Which cases go to the Crown Court?
The criminal offence in question will dictate which court can hear your case. More serious offences can only be heard in the Crown Court, while less serious offences can be heard at the magistrates’ court. Some offences can be heard in either court.
If you plead guilty at your first court appearance, depending on the case and how serious it is, it is possible that it could be sent to the Crown Court for the sentencing procedure.
If you plead not guilty or indicate that you will plead not guilty ,and your case is one that the magistrates decide that they cannot deal with, it will be allocated to the Crown Court. In this case you will make your first appearance in Crown Court shortly after.
What is a plea and trial preparation hearing?
You will be represented by a barrister or higher courts advocate instructed by Lawtons. The initial hearing is known as a plea and trial preparation hearing. At that hearing, you will be expected to enter a plea to the charges against you.
If you enter a plea of ‘not guilty’, then the court will give directions for the progress of the case towards a trial, including setting dates for the service of prosecution evidence and any other issues of law that may be required. At this stage, the case will either be given a fixed date for a trial or alternatively the court will identify a special list into which the case will be entered.
What is a ‘warned list’ in UK law?
A ‘warned list’ or ‘Crown Court warned list’ is a list of cases which are used as back up cases if a case which is given a fixed date for trial does not proceed for some reason.
When will Crown Court listed cases be held?
If a case is entered into a warned list, it means that it could be listed for trial at any time during a given period, which in most courts is two weeks, but this does vary from court to court.
You will normally receive notification that you trial is listed on the working day before it is due to commence, so you are obliged to keep yourself available during that two-week period. If the case is not listed during the ‘warned’ period, it will thereafter be entered into the next available warned list.
If a case is given a fixed trial date then you will know exactly which day the trial will start. Once a trial starts, it continues to its conclusion.
In very complex or serious criminal cases, the court may list the case for a further trial preparation hearing shortly before the trial is due to commence to deal with any issues that may need to be resolved, or to give further directions.
What are the Crown Court trial stages of procedure?
After a criminal case is listed for trial, those involved – including the defendant and victim – attend court. The trial takes place before a judge and jury.
- Once a jury is selected and sworn in, the prosecutor will inform the jury what the case is about, then call the prosecution witnesses to give evidence that will be cross-examined by a defence barrister.
- Once all prosecution witnesses have given evidence then the defendant can give evidence, followed by any defence witnesses.
- Once the court has heard all the evidence, the barristers make closing speeches to the jury, following which the judge sums up the evidence and informs the jury of the relevant law in relation to the charges.
- Once these summaries are complete, the jury will retire to consider their verdicts and make a decision as to whether the defendant is guilty or not guilty.
What happens after a Crown Court trial?
If you are found not guilty of committing the criminal offence, you will be discharged from the court and the case brought to a conclusion.
If you are found guilty, the court may sentence you straight away, having heard from your barrister in mitigation. Otherwise, sentencing will be adjourned for the preparation of pre-sentence and perhaps other reports prepared by the probation service to assist with sentencing and identifying the possible sentencing options.
This guide is intended to give general information only and is not intended to be used as the basis upon which advice is given, nor should it be relied upon as giving advice specific to a case or individual.
Lawtons do not accept liability for anyone using this guide. Should you require specific advice in connection with a real case or situation, please contact us immediately so that we can provide specific advice.
About the author
Nick Titchener, director and solicitor advocate of Lawtons, is a dedicated criminal solicitor with considerable experience in legal cases involving sexual offences, violence and assault. Nick’s measured and methodical approach means he thrives on even the most complex case.
Nick also oversees the overall management of Lawtons Solicitors, a specialist firm of criminal law defence solicitors with branches across London, Hertfordshire, Bedfordshire and Essex.
FAQs about the Crown Court Procedure
How long does a Crown Court trial last?
There is no set length for a trial, nor is it possible to accurately predict how long a Crown Court trial will take. However, length tends to be determined by the complexity of a case.
Where relatively straightforward cases take no more than a few days, other cases can take several weeks or even months. The standard jury service period in the UK is two weeks.
While jurors may be required to serve for much longer than this, it indicates that Crown Court trials are not usually expected to exceed two weeks in length.
How long does it take for a case to go to Crown Court?
It is impossible to predict how long a case will take to go to any court – however, on average it can take up to six months for a case to go to magistrates’ court and up to a year for a case to reach Crown Court. In 2017/18 the average time between a case being sent up to Crown Court and the beginning of hearings was 19.2 weeks.
What does ‘for mention’ mean in a Crown Court trial?
A case is listed for mention if there is an administrative matter to be ruled upon before the main trial can proceed (or proceed any further). For example, the judge may need to rule whether a certain piece of evidence can be used in court. Mentions for cases are usually dealt with quickly and often take no longer than one sitting.
A case which is ready to proceed without mention would be listed as ‘for hearing’. Where a case is described as for mention, it will also be specified who needs to attend the mentioning – whether all parties, the defendant or otherwise.
This is where a phrase such as ‘for mention (defendant to attend)’ or ‘for mention (all parties to attend)’ would be used.
What is a witness warning?
A witness warning is a notification by phone, email or letter that you may have to attend court as a witness. It is not a summons in itself but means that you should be prepared to go to court and will be kept up to date with the progress of the case.
The 3 Stages Of A Misdemeanor DUI Court Process [Step-by-Step Guide]
The court process for a misdemeanor DUI may include the following 3 stages:
- Stage 1 = The Arraignment
- Stage 2 = The Pretrial Conference
- Stage 3 = DUI Trial
Watch this video to learn what happens at each stage of the process.
By clicking on the links below you can skip to the section your most interested in reading.
Stage 1 in The Misdemeanor DUI Court Process Is Arraignment
The first court appearance for your DUI is the arraignment. Formally, an arraignment is where the charges against you are read in open court and then you are asked to enter a plea.
Do You Plead Guilty or Not Guilty At Arraignment?
The main purpose of this proceeding is for you to enter a plea of guilty, nolo contendre or not guilty.
Your lawyer will typically ask the court to waive the reading of the complaint against you and enter your plea of not guilty. If you are present, the court will also advise you of your constitutional rights.
What Are Your Constitutional Rights?
- Right to be represented by an attorney
- If you cannot afford one, the court will appoint a public defender to represent you1
- Right to not incriminate yourself and to remain silent2
- Right to a speedy trial ((Serna v. Superior Court (1985) 40 Cal.3d 239))
- Right to a jury trial
- Right to confront and cross-examine witnesses
Do You Need To Post Bail At Arraignment?
In most DUI cases, the defendant is not in custody and there is no issue regarding bail. Bail is a payment that is made by the defendant to ensure appearances at future court dates.
Bail may be an issue if this is your third or more DUI offense or if there are other charges accompanying the DUI such as possession of firearms, assault, and possession of certain narcotics or others3.
Note: On October 1, 2019, the bail system in California will change with the passage of Senate Bill 10. The bill provides for the elimination of cash bail for misdemeanor DUI.
What Happens If You Appear At Arraignment Without An Attorney?
If you appear without an attorney, the judge will ask if you can afford one. If you are unemployed or low income, you may be asked to apply for a public defender at no or low cost to you.
The court is reluctant to have you represent yourself although you can plead guilty if you wish but only after you are fully advised of your rights and knowingly waive them4.
Do I Have To Appear At Arraignment In DUI Court If I Have An Attorney?
If you have an attorney, abenefit is that you do not have to appear at the arraignment, especially if you are entering a not guilty plea. Your DUI attorney will enter the plea for you and obtain discovery documents from the prosecuting attorney5.
What Type Of Discovery Can My Attorney Receive At Arraignment?
The documents provided to you or your attorney include a copy of the complaint with the charges against you along with a copy of the police report and any witness statements obtained.
You may also be served with a request for discovery at this time, or shortly thereafter, where your attorney is required to provide the prosecution with copies of witness statements names of witnesses who may testify at trial and documents you plan to introduce at trial.
If you enter a not guilty plea, the court will schedule a future court date for your pretrial conference.
Stage 2 – Pretrial Conference
Within a few weeks after the arraignment, the second stage of the DUI court process called the pretrial conference will be held.