How do I Prepare for the Financial Part of the Trial?

March 16th, 2010

Once all of your documents are in order, the financial issues which are still in dispute should be fairly obvious. You can work with your attorney to organize the documents according to the issues which they represent.  If you are not represented by an attorney, you will organize the documents yourself.

For example, if you are claiming your spouse hid money in an account, likely documents which would support that claim would be the bank or stock account records which reflect the money, deposit slips showing deposits into those accounts, pay stubs which show automatic deductions to that account, and perhaps loan documents which show that account as an asset. Those different documents together prove the same point.

Each of the points which you intend to cover should be organized in terms of importance. The most important points should be covered early in the trial. The presentation will also need to make sense chronologically. If you jump around too much in time, the court is likely to get confused.

Make an outline, or assist your attorney in making an outline, of the points that you intend to make in the trial.  You will not be permitted to read directly from your outline during the trial, but the act of outlining what you plan to cover increases the likelihood that you will cover all of the crucial points. You may refer to your notes or documents during your testimony with permission of the court, but keep in mind that opposing counsel may also look at any document you use to refresh your memory during the trial. Click here for some terrific information on the financial aspect of divorce.

Also make an outline of what you anticipate your spouse’s case against you will cover.  Be prepared to answer questions about those issues.  For example, if your spouse has repeatedly accused you of over spending, assume that this will be one of his or her arguments in the case, and be prepared to justify your expenditures. Click here for an article on some of the caveats of mismanaging money within a marriage.

Excerpted from Your Divorce Advisor: A Lawyer and a Psychologist Guide You Through the Legal and Emotional Landscape of Divorce (Simon & Schuster/Fireside 2001). For more information: http://www.yourdivorceadvisor.com/.

For more information contact Peace Talks www.peace-talks.com 

(C) 2008  Peace Talks Mediation Services, Inc.

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Expert Witness and Valuations

March 11th, 2010

If you have had an expert appraise your home, review your income figures, perform a custody evaluation, a business valuation or analyze other types of evidence, but you are unable to reach an agreement on these matters with your spouse, the expert witness may need to be called to testify in court.  This testimony will aid the judge in making a decision about the matters in dispute.

The expert must be disclosed to the opposing side, meaning that his or her name, address, business telephone number, as well as a summary his or her conclusions must be provided in advance of the trial. If the expert has prepared a copy of a report, such as an appraisal or written evaluation, that must also be provided. If the opposing sides wishes to depose the expert, he or she may do so. Click here for an article on expert witnesses.  

If you need to have an expert testify in court, the expert’s fees are your responsibility unless the court makes orders otherwise. Click here for an article on expert witness’ fees.

What Kinds of Discovery Can be Used at Trial as Evidence?

In addition to documents and live witnesses, you can also use depositions and prior testimony as evidence in trial.

Depositions and Prior Testimony

Depositions are sworn testimony taken under oath prior to a trial or hearing.  They were discussed in detail in Chapter 5, and a set of sample deposition questions appears in the appendix. Because the testimony at a deposition is obtained under oath, recorded by a court-authorized professional, and all parties have had an opportunity to be present for testimony, a deposition can later be used in court under certain circumstances:

If you depose a witness who is not available at the time of the trial (i.e., out of state, in the hospital, deceased)  the deposition can be entered into evidence in lieu of that person’s testimony

If you depose a witness who testifies in court with answers that are different than those given in the deposition, you can use the deposition in court to show that the witness’ testimony is contradictory. Your goal is to indicate to the court that the witness is either lying in court, or has lied previously under oath.

Excerpted from Your Divorce Advisor: A Lawyer and a Psychologist Guide You Through the Legal and Emotional Landscape of Divorce (Simon & Schuster/Fireside 2001). For more information: http://www.yourdivorceadvisor.com/.

For more information contact Peace Talks www.peace-talks.com 

(C) 2008  Peace Talks Mediation Services, Inc.

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Giving Your Testimony

March 9th, 2010

If the reasons that the marriage broke down may influence alimony or property division in your case (each state’s law is different), you will need to describe these reasons clearly and succinctly.  That is not to say that you should do this in an unemotional fashion; however, you need to be focused and to the point.

How to minimize nervousness

After preparing for this day for so long, you will feel very nervous, even queasy on the day(s) of trial. Preparation helps reduce anxiety. Have your story clear, know what is important, and practice separating out the emotion you feel from the facts you wish to convey. Tell the judge about the situation, not how you have been wronged. The story will speak for itself. Practice in the mirror the night before if it helps you to feel prepared. Have a friend or family member ask you questions you think the judge might ask. In court, have a trusted supporter sitting in the courtroom, and keep your eyes on that person. Try not to look at your ex-spouse. If it works for you, wear a good luck charm. Click here for an article on minimizing anxiety during your trial.

Other Fact Witnesses

In addition to your own testimony, you will need to decide who you would like to assist you with your case. Get together a list of the names, addresses, and telephone numbers of each possible witness along with a short summary of what information the witness would contribute. Speak with them to find out if they are willing to come to court to testify if necessary, and ask the witnesses if they would speak with your lawyer in advance of the case. 

When custody matters are at issue, you may need witnesses as personal references for what kind of a parent you are, how you discipline or treat your children on a day to day basis, whether or not you attended parent/teacher conferences, and other parenting issues. Witnesses may include the children’s teachers, doctors, therapists, the parents of playmates, or your neighbors.  Typically the best custody witnesses are people to whom you are not related, and with whom you did not have a particular friendship. A good example is the teacher who saw you coming to nursery school every single day to drive your child, and observed you interacting with your child.

Unless your character has been called into serious question, character witnesses like those seen on TV trials won’t be necessary.  The judge will assume that your friends will say nice things about you. If a private investigator has been involved, he or she may also be a fact witness. Typical evidence introduced through an investigator includes your spouse’s driving record, criminal record, and related damaging evidence. Click here for more information about what you can expect.

Typically, the lawyer will call witnesses in advance of the trial and let them know what they can expect to be asked on the stand.  The lawyer may even practice asking and answering the questions with the witness, which helps evaluate whether your proposed witness would be helpful in court.

Excerpted from Your Divorce Advisor: A Lawyer and a Psychologist Guide You Through the Legal and Emotional Landscape of Divorce (Simon & Schuster/Fireside 2001). For more information: http://www.yourdivorceadvisor.com/.

For more information contact Peace Talks www.peace-talks.com 

(C) 2008  Peace Talks Mediation Services, Inc.

 

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What Kinds of Witnesses Should I Consider?

March 3rd, 2010

Fact witnesses are people who can testify about the facts of the case, such as the length of the marriage, the finances, and why the marriage broke down. They testify about things that happened.  Most witnesses are fact witnesses.  You are a fact witness. Your neighbor who saw your wife throw a barbecue spatula at your head is a fact witness.  Your employer’s payroll clerk is a fact witness.

Your Testimony

You are the most important and best witness in your case.  You will testify about the length of the marriage, how assets accumulated, and why and how the marriage broke down. You will testify about your children, and what their lives are like from day to day. You will testify about virtually everything that has anything to do with your case. Your testimony will be very important to the judge. How you look, what you wear, how you talk, and how you present yourself to the judge are all important issues.  It’s imperative that the judge believes you, and sympathizes with you.  If you are using an attorney, your lawyer will work with you to make the best presentation possible. Click here for an article on your sworn testimony.  

You can only perform this function well if you are prepared, if you understand the court’s priorities, and if you understand the theory of your case. The theory of your case is the underlying theme which you or your lawyer hope to emphasize in your trial. It could be you as dutiful, wronged spouse or you as devoted parent unable to make ends meet while your spouse gambles. Discuss this with your attorney before the trial begins, so you provide a consistent picture of your situation.

By the time that you get to this point, you should have already given your lawyer a full written marital history as well as a list of your goals for trial.  Putting these two things together will give you a good idea of the theory of your case, and which parts of your testimony are clearly needed. Then you must reconcile your theory with the priorities of the court.  Focus your theory around what the judge will want to know. Click here for some additional information on prepping for court

For example, the judge will want to know about your health, your ability to continue working, and what you expect to be earning, as well as this information from your spouse.  The judge will need to know if either you or your spouse contributed a larger amount of money than the other, and how you and your spouse contributed in non-financial ways to the marriage.  If for some reason you feel that it’s not appropriate that either you or your spouse works because your children are young, or for other reasons, the judge will also need to know about this.

Excerpted from Your Divorce Advisor: A Lawyer and a Psychologist Guide You Through the Legal and Emotional Landscape of Divorce (Simon & Schuster/Fireside 2001). For more information: http://www.yourdivorceadvisor.com/.

For more information contact Peace Talks www.peace-talks.com 

(C) 2008  Peace Talks Mediation Services, Inc.

 

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How Can I do Much of the Work Myself and Save the Lawyer’s Fees?

March 1st, 2010

You can save yourself money and aggravation if you help your lawyer prepare for the trial.  Only you will truly know if the lawyer has everything required, for who is more familiar with your circumstances than you?

There are a number of ways you can help your lawyer prepare your case, especially in determining what types of witnesses will be most beneficial and determining and assembling determining which documents will be needed. Both of these tasks are time consuming, so if you can do them yourself, or at least assist your lawyer, you can save money in addition to feeling like you have more control over your case–and your life.  Obviously, if you’re representing yourself, this entire task falls on your shoulders.

For Pro Se litigants:  To increase the likelihood that your documents will be accepted as evidence:

  • find a copy of your state’s rules of evidence. Good sources are your local library, law library, or the internet
  • make sure you are using an original, or a true copy of an original
  • make sure it is signed and its accuracy is certified by its preparer (i.e., wage records, tax returns)
  • if it is a document which you are required to disclose to the other side before the trial, make sure you have done so in accordance with court procedures
  • if the document is hearsay, a very complicated evidence rule (don’t feel bad, many lawyers don’t understand it either!) which is explained above, determine if there are exceptions to the hearsay rule which may mean the document is admissible anyway. You may need a lawyer to assist with this determination

Even if your document violates a rule of evidence and should be inadmissible, in order for a document to be excluded from evidence, the opposing side must object to it. Sometimes the opposing side will forget to object, or they just won’t bother. The worst that can happen is that the other side objects and the document is not admitted, but you don’t know until you try.  Caveat: there’s a difference between assertively attempting to get important documents into evidence and aggressively alienating the judge with endless, repetitive requests.

Practical hint:  come to court with photocopies of the document for the opposing side, for the witness to use, and for you to use, as the judge will end up with the original if it is accepted into evidence.

Click here for an article on pro se divorce.  For an article to help you determine whether a pro se divorce is for you, click here.  

Excerpted from Your Divorce Advisor: A Lawyer and a Psychologist Guide You Through the Legal and Emotional Landscape of Divorce (Simon & Schuster/Fireside 2001). For more information: http://www.yourdivorceadvisor.com/.

For more information contact Peace Talks www.peace-talks.com 

(C) 2008  Peace Talks Mediation Services, Inc.

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What Documents are Needed by the Court?

February 25th, 2010

You and your lawyer will make a list in advance of all of the documents that you have, and those which will be needed at trial. If your financial issues are unresolved, typical documents which are used at trial are:

  • Your 5 most recent tax returns
  • 6 months to a year’s worth of payroll records or pay stubs from you and your spouse
  • Any other income records, including independent contractor work, interest and dividends, commissions, bonuses, and earned by not-yet-paid commissions and bonuses
  • Your and your spouse’s most recent bank statements, stock statements, and credit card statements
  • Any bank, stock, or credit card statements which show a discrepancy or questionable item, such as an unauthorized withdrawal or charge
  • Loan applications and financial statements prepared by you and/or your spouse
  • Pension, IRA, and 401K  statements
  • Real estate records, especially house closing statements and appraisals
  • Financial records for any businesses or partnership ventures  you or your spouse own by yourselves or with partners
  • Copies of any documents which show that money is owed by you, or to you, or your spouse
  • Documents showing inheritances or trust income or assets which belong to you, or which will belong to you.  Wills and trusts of persons not yet deceased are typically not pertinent. The court is only interested in money which you have, or which you have a legal right to but just haven’t received it yet.
  • Life insurance statements showing life insurance polices, and any cash balances on same
  • Records of any gifts you or your spouse have made (over $100 or so) in the last 5 years
  • Records of the sale of any real property or personal property over $350
  • A list of personal property which is in dispute
  • Other documents which tend to prove the allegations you’re making in your case.

 Provided you’ve followed the admissibility guidelines above, these documents are typically readily admissible as evidence.  Because these documents are used in practically every case, it makes sense to share copies with the opposing side in advance (if you have not already done so through discovery, Chapter 5) to see if you can agree that the documents will be admitted and mark them as exhibits in advance of the trial.  If there is an issue about the accuracy of the document, be prepared to prove that the contents are true. Click here for great information on the documents you will need to provide your divorce attorney.

Some of these same documents may be needed if your trial is focused on child custody issues, since living arrangements and financial issues (especially child support, and to a lesser extent alimony) may be tied to decisions about the child’s living conditions. For an article on child custody papers, click here.

Excerpted from Your Divorce Advisor: A Lawyer and a Psychologist Guide You Through the Legal and Emotional Landscape of Divorce (Simon & Schuster/Fireside 2001). For more information: http://www.yourdivorceadvisor.com/.

For more information contact Peace Talks www.peace-talks.com 

(C) 2008  Peace Talks Mediation Services, Inc.

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Documents

February 23rd, 2010

While documents are technically considered to be hearsay, there are special exceptions for certain types of documents.  Certified public records, certified business records, and easily verified information are usually exempt from hearsay problems. Examples of these types of documents include: copies of deeds which have been recorded on the land records and signed by a clerk; court judgments which have been signed by the court clerk indicating that it’s a true copy of the original; and employment and wage information which is signed by the employer’s record keepers.

As with hearsay, the lawyers can agree in advance to exchange copies of records and to waive any objections to their admissibility in court.  This procedure is purely voluntary, however, and needs to be completed in advance of your court date.  This is sometimes called “pre-marking exhibits”.   Perry Mason fans will be disappointed to learn that there is rarely surprise evidence in family court, but on a practical level it makes sense.  If everyone agrees that the tax returns are accurate and relevant, there’s no need to bring the accountant in to testify about how they were prepared. Click here for an article called “Evidence 101 in Divorce Trials.”  

Best Evidence Rule

You must produce the original of a document if it is available. If it is not available, then a copy will suffice. If an eye-witness is available to testify about an event, you need to bring that witness into court to testify, as opposed to someone who heard about the accident afterwards. Always “go to the source” for your evidence, and you should have no problem satisfying the Best Evidence requirement.

Getting Evidence Accepted by the Court

During a witness’ testimony, documents such as those described above are introduced into evidence to substantiate a point the witness is making. The witness will identify the document, and say why it’s pertinent. The other lawyer has an opportunity to object to the document, and then the judge decides if the document becomes evidence in the case or not. Typically, most financial documents become evidence without a problem. Controversial documents, such as unsigned love letters used to prove that one spouse was having an affair, can trigger more objections and may or may not be accepted into evidence at the trial. The evidence is important to the judge insofar as it helps him or her understand how assets accumulated or were dissipated in your marriage, how to divide those remaining assets in a way that’s fair, and what’s best for your children. Click here for some additional rules of thumb to assist you in getting evidence accepted by the court.  

Excerpted from Your Divorce Advisor: A Lawyer and a Psychologist Guide You Through the Legal and Emotional Landscape of Divorce (Simon & Schuster/Fireside 2001). For more information: http://www.yourdivorceadvisor.com/.

For more information contact Peace Talks www.peace-talks.com 

(C) 2008  Peace Talks Mediation Services, Inc.

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What Counts as Evidence?

February 22nd, 2010

Evidence is testimony, documents, physical evidence, and nearly anything else that provides information to help prove the truth (or untruth) of a fact that’s been alleged by either side. Most people think of “evidence” as murder weapons and experts who testify; evidence also can be less dramatic and sophisticated. All of the documents which you collected in Chapters 2 and 5 are evidence.  Everything labeled as “discovery” is evidence. In addition to these materials, everything you and your spouse say on the stand is evidence. Click here for an excellent article on what constitutes evidence.

A finer point, but an important one, is that arguments made by lawyers (or by you, if you’re serving as your own lawyer), are not evidence. They are persuasive statements which will attempt to summarize the evidence in a way that’s favorable to your case.  Arguments don’t introduce new facts. That’s how you can tell the difference between evidence and arguments. Evidence introduces new facts, and arguments interpret those facts.  The judge will listen to the arguments, and may even be swayed by them, but they are not evidence. That’s why it’s important to make all of your points through testimony. For example, if you “forget” to say something on the stand, your lawyer cannot say it for you.

Various kinds of evidence will be accepted by the court.  There are many complicated legal rules, but a few basic concepts will help you to understand how and why a judge will accept or reject evidence at a trial.  Knowing this in advance will help you prepare your case with your lawyer. If you are representing yourself, you will need more detailed information about the rules of evidence in your state’s court system. You can find this at a law library, or for some jurisdictions, on the internet.

Hearsay

Hearsay is a statement which is made by someone out of court who is not in court to testify. For a good article on hearsay, click here.  The statement is being offered for the truth of the matter asserted. That’s the legalese definition.  What it means is that you cannot repeat something that someone said outside of the courtroom while you’re in court, unless that person is also in court to testify. If you want to testify that your neighbor said to you that your spouse is not a good parent, you cannot repeat this to the judge unless your neighbor is in court to verify that this is indeed what he or she said. Statements such as  “the doctor told me that…” or “the neighbor said…”  are not admissible unless either the doctor or neighbor are in court, present, and able to testify. On the other hand, if you want to testify that your spouse made a hurtful comment to you three months before the case started, this is permissible provided your spouse is in court to testify.

Excerpted from Your Divorce Advisor: A Lawyer and a Psychologist Guide You Through the Legal and Emotional Landscape of Divorce (Simon & Schuster/Fireside 2001). For more information: http://www.yourdivorceadvisor.com/.

For more information contact Peace Talks www.peace-talks.com 

(C) 2008  Peace Talks Mediation Services, Inc.

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Hearsay

February 22nd, 2010

Courts are divided as to whether or not they permit you to repeat what your children have said.  Some courts have determined that it is more important that the child not be called into court to testify than it is to follow this evidence rule, and they permit testimony.  Other courts appoint attorneys or guardians ad litem to testify on behalf of the child. Very few courts will permit a child to testify, as most believe it should be avoided at all costs.

It is tempting to want your child to testify, especially after all the comments the child has made about your ex and his or her home. Children often shift their allegiances depending on whom they are talking to, and children will feed parents what they think the parent wants to hear. This is how they express their support and love, especially if they are rewarded by your concern about them. Putting your child on the stand requires a public stance that can be devastating to the child, and can tear away at the child’s relationship to one or both parents. Click here for an interesting article on children testifying in court.

Similarly, you cannot use letters in court because they are “out of court statements”. The fact that they’re written and signed usually doesn’t satisfy the hearsay requirement.  If you want to use a letter in court, the letter-writer will typically need to be in court to testify.

Sometimes, for the sake of expediting a trial, the lawyers will agree to waive the hearsay problem for certain documents or testimony.  Such an agreement must be made prior to the start of the trial, or the introduction of that evidence. Ask your lawyer if this will be possible in your case. A good example of a hearsay problem that is often waived by agreement is a written appraiser’s report.  Assuming that everyone involved with the case has had an opportunity to review the report, the appraiser has a good reputation, and the value placed on the asset is within the expected range, then the lawyers may agree that the report come into evidence without a hearsay objection. Click here for an interesting article about hearsay gleaned from Facebook.

An important note about hearsay: you can try and introduce hearsay evidence even though you know that it is technically inadmissible.  It is up to the opposing side to make a prompt and appropriate objection. If they do not do so, then the hearsay evidence will be admitted. On the other hand, you do not want to repeatedly introduce hearsay evidence if the opposing side continually makes objections. This will only serve to anger the judge.  If a piece of information is crucial to your case, you need to be prepared to have the witness in court to testify to make sure you don’t have hearsay problems with your evidence.

Excerpted from Your Divorce Advisor: A Lawyer and a Psychologist Guide You Through the Legal and Emotional Landscape of Divorce (Simon & Schuster/Fireside 2001). For more information: http://www.yourdivorceadvisor.com/.

 

For more information contact Peace Talks www.peace-talks.com 

(C) 2008  Peace Talks Mediation Services, Inc.

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New York Times Explores No-Fault Divorce

February 19th, 2010

Today,  marriage and family therapist Ruth Bettelheim wrote a terrific Op-Ed piece for the New York Times exploring the effects of 40 years of no-fault divorce in our country.

She explains: “In an adversarial custody battle, no one wins, but children are the biggest losers of all. Intelligent legislation could promote the one thing that children of divorce need most: peace between their parents.”

Peace between divorcing parents is the goal of Peace Talks Mediation Services and the theme of our second book, “Making Divorce Work.” Click here to read this excellent article.

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