Archive for the ‘Legal Issues’ Category

Expert Witness and Valuations

Thursday, 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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What Kinds of Witnesses Should I Consider?

Wednesday, 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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Mandatory Waiting Period

Wednesday, July 22nd, 2009

One of the most confusing and least understood parts of the legal process is the mandatory waiting period: what needs to happen, and what is the timing?

 

Most states specify a waiting period of between 3 and 12 months from the time you file the papers until your divorce can be finalized. For a list of the waiting periods, see http://www.totaldivorce.com/process/requirements/waiting-period.aspx. During this waiting period your lawyer will be pursuing financial discovery that is, assembling all of the financial documents that are relevant to your case (in addition to the documents you’ve already provided). Your lawyer should also be helping you to formulate a settlement proposal for resolving your case. By understanding the settlement process, you can help to guide your case to a successful ending.

 

Staying In or Leaving the House

 

Legally, many states permit couples to live together during their divorce. Other states, like New York, require a physical separation of a specific duration (New York is one year, most other states are 3 months to a year) before a divorce can be granted. All states permit separation during the divorce process. The question is whether a physical separation at this time makes sense for your family. Consider:

 

  1. Your finances: will you be able to support two households right away?
  2. The stability of your children: where will they live, and how will they get to see each parent?
  3. Can you agree on who stays in the marital residence, or will this decision require court intervention?
  4. Is there a potential for domestic violence, especially now that tensions are escalated?
  5. Will both of you have adequate transportation and furnishings; e.g., are you sharing an automobile?

 

The most frequently asked legal question is:  Is there a legal advantage to separating or staying in the same household?   The answer to this question varies widely across jurisdictions and lawyers. Many lawyers subscribe to the old adage of “possession is 9/10ths of the law” and instruct their clients that if they hope to live in the house after the divorce is finalized, they should not move out of the house during the divorce. Similarly, if the client wishes to live with the children, the client should not move out without them. Even though orders made during the time the divorce case is pending are supposedly “without prejudice”, meaning that the court has the authority to change any orders at any time, the lawyers who subscribe to the “possession is 9/10ths of the law” school of thought believe otherwise. While no statistics are available to support or refute this theory, imagine such a scenario as presented to a judge: if the arrangement has stabilized the children and seems to be working, why risk a change? For a good article about some of the parenting challenges present during the separation period, see http://www.drheller.com/parenting_challenges.html.

 

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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Living Together During or After Divorce

Monday, July 13th, 2009

The Wall Street Journal published an article today about staying together after you get divorced, or staying together while the divorce is going on.

http://online.wsj.com/article/SB124743668592229179.html

Nice idea, in principal.  Right? It’s cheaper, you don’t have to worry about changing the kids’ schedules, you keep your same mailing address……

But what this article, and the similar article which appeared in the New York Times on December 30, 2008, failed to mention was that the time of separation and divorce can be a very difficult time for the participants.  Even for families which are not involved in chronic domestic violence, it is not uncommon for there to be 1 or 2 isolated incidents of violence surrounding the decision to divorce.

Are we sure that’s worth the money?

A client called last week and said, “We got into a fight and [spouse] slapped me. I called the police, and the police arrested [spouse]. Now what do I do?” This same client had called the week before complaining that he/she didn’t see how their mediation could be completed for the average amount of fees which we quote clients.  Now the cost of mediation is a drop in the bucket—-spouse had to be bailed out of jail, there’s a restraining order, and one or both spouses will need an attorney.  I’ll bet that spouse is no longer interested in settling through mediation, so the new divorce lawyers will easily cost 3 times the amount of money that client was worried about just a week prior.  And let’s not forget that all of this went down in front of the parties’ children.

So is it really about money?  At this point, I fail to see the savings.

Likewise, the Los Angeles Times has a similar article in today’s paper:

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As a 20 year divorce professional (litigator turned mediator) I worry that in an effort to save a couple of bucks that people are putting themselves in danger.  And if it’s not physical danger, per se, what about what the children are witnessing? Are these parents who are staying together really perfect role models for how adults should handle conflict?  I sure hope so, but somehow I doubt it.

Let’s not forget that an overwhelming number of non-gang-related homocides are [former or current] romantic partners. Remember the fellow who dressed as Santa and killed half of his wife’s family last Christmas? He was her ex husband.

My observation of “I can’t afford it” is really “I don’t value it so I’m not going to spend money on it”.  Remember when you shared an apartment with 2 other people in college? Or you clipped coupons to make ends meet because your first job paid $5 an hour?

Staying together in the same house while you’re getting divorced may work for some folks, but for those it does not work for, it is a disaster.

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Posted in Conflict Management, Cost of Divorce, Creative Problem Solving, Divorce and Your House, Emotions During Divorce, Filing for Divorce, Legal Issues, Life After Divorce, Property Division | No Comments »

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