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.

All divorces require court approval to be final and legally binding. These final agreements are put in writing and signed by the judge. This is called an “uncontested divorce” despite the fact that there may have been many conflicts and disputes during the process.  Only 5-15% of divorcing spouses reach the trial stage of divorce. Since trials are costly financially and emotionally, most people, including judges and lawyers, make every effort to settle their disputes without reaching this stage. Trials are last resort options when the well-being of yourself or your children hangs in the balance.

However, be cautioned. Do not delude yourself.  Many people want a judge to decide because they hope to gain an advantage in the case.  For them, trials are about “winning”, not justice.

Court Intervention

The amount of court intervention your case needs depends upon the number of issues which you need to be resolved.  If you can settle some of the support, custody, or property issues, you can present those as an agreement and limit your trial to evidence only on the issues you weren’t able to resolve.

Once the court has been called upon to resolve a divorce, the court’s role changes from one of simple review of an agreement to a forum for adversarial conflict resolution. Most states have recognized that the adversarial system doesn’t serve families and children well, sustaining  conflict by enabling people to testify against one another in hopes of gaining money, property, or child custody rights. Courtrooms are the last resort for those cases which are not resolved by the parties themselves.

Once divorcing spouses have entered the court arena, the chance for a meeting of the minds is greatly diminished. After having heard everything bad your spouse has to say about you, you may have a hard time working through the inevitable loose ends: dividing up the photograph albums, or deciding who gets which TV set, not to mention exchanging parenting schedules or sitting down together at a parent/teacher conference at your child’s school. Going to court can be a useful resource, and it may be your only reasonable choice after you’ve exhausted negotiations with your spouse in every available forum, but it’s best used as a last resort.

If you are headed to trial, and you have been representing yourself, you will want to consider hiring a lawyer to represent you in court. If your spouse has an attorney, it is in your best interests to hire your own representative. At the very least, you should seek out the assistance of a lawyer in planning your case and assembling your evidence so that you present a concise, well-organized case to the judge.

Be sure to visit our resource center at http://www.peace-talks.com/resources.php. For the pros and cons of going to court see, http://www.peace-talks.com/proscons.php.

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.

Have I exhausted all of the reasonable, productive alternatives for determining the total amount of our assets and income?  Have I done my research thoroughly, so that I have a valid understanding of our financial situation. If I do a thorough job of investigation and reviewing the available information, I will feel confident to choose a settlement offer that is acceptable.  Taking responsibility for my own protection through educating myself is a positive step toward my future financial independence.

Have I exhausted all available mediation and settlement opportunities?  I am confident that I can protect my own financial and economic well-being through my ability to evaluate settlement opportunities carefully, even when my feelings are hurt or I long for revenge.

Have I acknowledged my share of what went wrong in the marriage, even if I feel it’s mostly my spouse’s actions which have caused us to divorce?  Being able to recognize that each of us has contributed to the situation will help me to have a balanced perspective for settlement.

Have I made the right choices for myself in terms of advisors, goals toward economic self-sufficiency, and emotional independence?  Resolving these issues and learning to separate before the divorce is finalized will help me negotiate a fair resolution based on facts, not feelings.

Have I honestly evaluated whether the proposals which have been made are reasonable?  If I do not believe them to be reasonable, do they provide for me sufficiently so that I am able to accomplish most of my goals?  Learning to accept a settlement which is imperfect may be the best way to resolve my divorce in the long run, even if it is disappointing in the short term. For more information, see our resource center at http://www.peace-talks.com/resources.php. Online support is available at http://www.divorce360.com/.

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.

As you are headed for trial, take a final breath and ask yourself whether you have done all you can to avoid the continuation of conflict. By now, if you are still disputing a settlement, you have probably decided that it is really your spouse who does not want to settle, and he/she is doing everything possible to prevent your getting your fair share. True or not, you still have the power to end the dispute. One can always turn the other cheek in a fight. Even in war, it takes two to tango. The 60′s slogan is apropos here: What if they had a war and nobody came?

Taking stock of your situation one final time, and determining whether settlement is possible, evaluate…

• Am I still consumed with hurt and rage that I wish to visit on my ex-spouse?
• Do I still want him or her to come to his senses and call the whole thing off?
• Have I acknowledged my share of what went wrong in the marriage, even if my spouse had the affair or became the alcoholic? What did I do, or what did I overlook?
• Am I ready to become more self-sufficient economically? If I have small children, do I have a reasonable plan for how I can be with them as much as I need to and participate in the family money making as soon as I am able?
• Do I have a lawyer who advises me to make compromises, to keep my family interests at the center of the divorce, and to settle issues whenever possible? Or do I have a lawyer who encourages me openly or indirectly to fight?
• Do I need to keep fighting or do I and my children have the basis for a healthy post-divorce life? Maybe my ex-spouse will see the children more than I want him to, but will that really harm my child, or will it be an irritation he or she will have to stand up to when at an appropriate age to do so?
• Am I acting out of fear of the unknown; are my fears rational or irrational?
• Have I worked out ways of separating from my spouse physically and psychologically? Do we have plans that limit contact to the extent I feel comfortable; could limiting contact further help us reach settlement?
• If we’re stuck on economic issues, is there another way to look at the issue? Could we make an interim agreement that has a definite endpoint that will give us both time to adjust? Maybe it is less fair for one of us for 5 years, and then tips the other way. Maybe our negotiations leave things too open-ended for too long.
• Are we communicating in a way that serves the divorce rather than conflict? Am I badgering him? Is she provoking me? Could we get help communicating rather than negotiating?
• Am I still focused on the past? What could I do to look more happily toward the future? How will the settlement proposals support my goals for the future?
• Do I have proposals on the table that I can live with? Are they really impossible or are they unfair? If unfair, how much fairer would they need to be before I can live with them?

After answering these questions, you will have a sense of whether you are ready to settle or in what areas you need to do more work. Your inability to find an acceptable settlement could be personal, or it could be between partners, or it might require more assurances where your children are concerned. In this imperfect world, weigh the value of stretching out the divorce versus living with this amount of imperfection. If you are satisfied that you have not settled your divorce for solid reasons — that you or your child’s safety, mental health, or economic stability are at issue — then you need to switch into the mind set of preparing for trial.

For a terrific video describing the Seven Keys to Resolving Family Conflict, see http://www.youtube.com/watch?v=xYBx–zUtlo. For additional tips on how to diffuse an argument before it gets out of hand see http://singleparents.about.com/od/successfulcoparenting/ tp/stop_arguing_with_your_ex.htm.

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.