During your first interview with a lawyer, the lawyer is already thinking about the trial. As you are telling her the facts of your marital difficulties, she is organizing in her head how she will present your story to the judge. The lawyer starts from what she needs to prove at the trial and works backward from there. The testimony and documents presented to the judge are used to prove the allegations made in your complaint for divorce. This proof is what we call evidence.
You Tell Your Story to the Judge by Answering Questions
You don’t just tell your story to the judge. A trial is not a conversation. Your story is presented to the judge through your answers to questions asked by your lawyer. This may seem like a crazy way to do it, but these are the rules of court. You will be better prepared for it if I walk you through some typical testimonies. You can also go to the courthouse and view some actual divorce trials. They are open to the public.
Tip Visit the courthouse and watch a divorce trial. You’ll get an idea of what you can expect at your own trial. (It might even motivate you to pursue an alternative to trial.)
The judge may call the attorneys into her chambers (the judge’s office) before the start of trial for any last-minute discussions about witnesses or organization of the trial. Then, the judge will enter the courtroom and sit behind an elevated desk called the bench. Everyone will stand when the judge enters the room.
Next, the bailiff, a court officer, who keeps order in the court, will announce the case. You and your spouse along with your lawyers will be seated at tables in front of the bench. The judge will ask if everyone is ready to proceed. Then the lawyers will introduce themselves and their clients. The trial is recorded so that a transcript may be prepared if there is an appeal.
Preliminary Matters: The Rule on Witnesses
You may hear one of the lawyers say, “Your honor, as a preliminary matter, we invoke the rule on witnesses.” The rule on witnesses says that anyone who will testify in the case, other than the husband and wife, must leave the courtroom until they are called to testify. This is so that their testimony will not be influenced by what they hear prior to it. If not invoked, the rule is waived, and it usually is waived in uncontested divorces.
Taking the Witness Stand: Your Testimony
The lawyers then make their opening statements, which usually begin with “The evidence will show . . . ,” after which they summarize what they hope to prove. Then, the judge says to the lawyer who filed the complaint, “Call your first witness.”
If your lawyer is the one who filed the complaint, that will be you. You will take the witness stand, which is a desk next to the judge’s bench. The bailiff will ask you to raise your right hand and swear to tell the truth under penalties of perjury. That means you could go to jail if you lie.
Note It usually doesn’t matter who files first, whether it is the spouse who is out for blood or the one who decides that negotiations aren’t going anywhere. The other spouse will have a chance to file a countercomplaint that will be treated the same as the original complaint.
Your lawyer will ask you questions designed to produce answers that can be used as evidence for the judge to prove the allegations in your complaint. This is called direct examination. In direct examination, your lawyer cannot suggest the answer to a question. So the lawyer cannot say, “Did your spouse desert you on September 15, 2012?” The lawyer must ask, “What happened on September 15, 2012?”
Your spouse’s lawyer will then have an opportunity to examine you. This is called cross-examination. It is all about asking leading questions. It is more or less a chance for your spouse’s lawyer to argue his case to the judge. An example might be, “You refused to pay for little Johnny’s braces, is that right?” If your case is uncontested, however, your spouse’s lawyer will probably not ask you any questions.
Let’s assume the wife, whose lawyer filed the complaint, is on the witness stand and being questioned by her own lawyer. What follows are the questions the lawyer will likely ask her client in an uncontested divorce.
Background Facts
The lawyer will ask a series of questions relating to the facts of the case.
Wife’s lawyer: In a loud and clear voice, please state your name, age, and address.
Wife: April Jones, twenty-eight, 555 Oakwood Drive, Corolla, North Carolina.
Lawyer: Do you know the defendant in this case?
Wife: Yes.
Lawyer: How do you know him?
Wife: He’s my husband.
Lawyer: When and where were you married?
Wife: May 6, 2008, in Duck, North Carolina.
HANDLING DOCUMENTARY EVIDENCE
There are special rules of evidence for documents. They must have a proper foundation. Their relation to the case must be clear. The witness has to authenticate them. This means they must be able to recognize them and be able to identify them by telling the judge what each document is.
Documents are handled in a special, formal way in court. First, your attorney has your marriage certificate marked by the clerk of the court, and the clerk affixes a sticker that says “plaintiff’s exhibit no. 1.” Then, your lawyer gives it to your spouse’s lawyer to examine.
Exhibit No. 1: The Marriage Certificate
Now, the attorney introduces the marriage certificate by handing it to her client and asking more questions.
Wife’s lawyer: I show you what’s been marked as ‘plaintiff’s exhibit no. 1.’ Can you identify this document?
Wife: Yes, it’s my marriage certificate.
Lawyer: Your honor, I move plaintiff’s exhibit no. 1 into evidence.
Judge: Any objections?
Husband’s lawyer: None, your honor.
Judge: It will be admitted.
Caution If the lawyer forgets to move the admission of an exhibit into evidence, it will not be looked at as part of the evidence the judge considers in making a decision.
Children
If you have children, expect questions to be asked about them.
Wife’s lawyer: Were any children born or adopted as a result of your marriage?
Wife: Yes.
Lawyer: What are their names and dates of birth?
Wife: Rose, January 22, 2000, and Leon, March 3, 2003.
Grounds for Divorce
Next, the lawyer will delve into the details of why her client is getting divorced from her husband.
Wife’s lawyer: Are you and your husband living together now?
Wife: No.
Lawyer: When did you separate?
Wife: August 13, 2012.
Lawyer: Was it your intention that the separation be permanent?
Wife: Yes.
Lawyer: Have you remained separated without marital relations since the date of separation?
Wife: Yes.
Lawyer: Is there is any reasonable or likely prospect of a reconciliation?
Wife: No.
Exhibit No. 2: The Separation Agreement
Next up are questions the lawyer will ask her client about the separation agreement.
Wife’s lawyer: I show you what’s been marked as “plaintiff’s exhibit no. 2.” Can you tell the judge what this is?
Wife: Our separation agreement.
Lawyer: What is the date of the agreement?
Wife: August 1, 2012.
Lawyer: Is that your signature on the last page of the agreement?
Wife: Yes.
Lawyer: Would you recognize your husband’s signature?
Wife: Yes.
Lawyer: Is that your husband’s signature on the last page of the agreement?
Wife: Yes.
Lawyer: You honor, I move the admission of plaintiff’s exhibit 2.
Husband’s lawyer: No objections, your honor.
Judge: It will be admitted.
Custody
The lawyer will proceed to ask her client about custody arrangements.
Wife’s lawyer: What does the agreement provide for custody?
Wife: We will have joint legal and shared physical custody.
Lawyer: Are both you and your husband fit and proper people to have joint legal and shared physical custody?
Wife: Yes.
Child Support
And, of course, the questioning will get into child support.
Wife’s lawyer: What does the agreement say about child support?
Wife: My husband will pay me $200 a month.
The lawyer then authenticates “plaintiff’s exhibit no. 3,” the child-support guidelines worksheet, and moves its admission into evidence to show the judge that the agreed-upon child support is consistent with the guidelines.
Retirement Funds
The judge will want to see that you have agreed on a division of retirement funds.
Wife’s lawyer: Does the agreement provide for the division of any retirement funds?
Wife: Yes.
Lawyer: Your honor, we submit the proposed qualified domestic relations orders, which have been signed by the parties and counsel.
Judge: They will be received.
Incorporation but Not Merger
The lawyer will ask this next question to make sure her client has all the legal remedies available to enforce her agreement.
Lawyer: Are you asking the court to incorporate, but not merge, the separation agreement into the final decree of divorce?
Wife: Yes.
Note In addition to the contract remedies available for breach of your separation agreement, incorporation into a court order will make any noncompliance subject to sanctions for contempt of court. If you merged the agreement with the order, you would lose the contract remedies.
Name Change
Last, the wife’s lawyer will declare to the court that she is taking back her original name.
Lawyer: Are you asking the court to restore you to your maiden name?
Wife: Yes.
Lawyer: Are you asking this for any illegal, immoral, or fraudulent purpose?
Wife: No.
Lawyer: And what is your maiden name?
You: Fletcher.
Lawyer: Your honor, that is the plaintiff’s case.
Note Some states require that all the testimony in your case be corroborated by an independent witness other than your spouse.
The Judge Rules
The judge will then ask the husband’s lawyer if he has any evidence to present. In an uncontested case, the response is usually, “No, Your Honor.”
The judge will then state the facts that she finds to be true (which are the ones alleged in the complaint) and most likely say, “Plaintiff’s divorce from defendant will be granted.” The judge will then order alimony and child support as agreed and sign any orders required to divide pensions.
If There Is No Separation Agreement
If you do not have a separation agreement, your case is contested, and it will take much longer to present all of your testimony, documents, and witnesses. What follows is a rundown of the issues you'll need to address and for which you’ll need convincing evidence if the judge is to rule in your favor.
Custody
Whether you’re seeking sole or joint custody with an access schedule, you’ll have to present evidence to show the judge why that is in the children’s best interest. If the children are living with you now, and you want to keep it that way, you will try to prove the children are doing well in school and are emotionally stable, and therefore the judge should not change anything. If you’re on the other side, you will want to show that the children are not doing well or could be doing better if things were changed. In either case, you should keep the emphasis on what’s best for the children, not what’s best for you.
Your evidence will include temporary custody agreements or orders in place, report cards, doctor’s visits, or calendars that show the current arrangements. You can also submit pictures of you and the children having a good time at soccer or karate practice.
You can call witnesses to testify that you are a good parent and have a good relationship with the children. Anyone who has seen you interact with the children can testify, including relatives, neighbors, coaches, religious leaders, and teachers.
The court may order a custody evaluator to conduct a study and make recommendations to the court regarding custody and visitation. If the report is unfavorable, you are permitted to attack it by showing any weaknesses in the report.
Possible defenses against an unfavorable custody report include the following claims:
- The evaluator was biased.
- The evaluator was inexperienced.
- The evaluator had little experience with families like yours.
- The evaluator talked to the wrong people.
- The evaluator’s report is internally inconsistent (the recommendation doesn’t match the facts).
- The evaluator failed to consider a crucial fact.
Although the judge can consider the preferences of the children in a custody case, calling the children as witnesses is usually a very bad idea. It puts them in the uncomfortable position of having to choose between mom and dad. No matter what happens, they will think they are responsible for the outcome.
The court can appoint an attorney to represent the children. He is called a best interest attorney, or a BIA. The BIA can present the children’s preference to the court. If the judge does decide to hear from the children, she will probably interview them privately in her chambers rather than in open court.
Tip Never put your children on the witness stand in a divorce trial. If you do, they may have to choose between mom or dad, and they may feel the outcome depends on their testimony. This is an unfair burden to place on children in most cases.
Support
Your attorney will introduce your financial statement, tax returns, and pay statements through your testimony and those of your spouse through his testimony.
If you believe your spouse is unemployed or underemployed intentionally to avoid paying support, you will need to call a vocational rehabilitation expert to prove it. Expert witnesses differ from other witness in that they are allowed to state their expert opinions in court. Other witnesses can only testify about facts.
First, the court has to qualify your witness as an expert in the area on which you are offering her opinion. This is accomplished by your attorney asking her questions about her education and experience.
The expert witness will give her opinion about the income your spouse could be earning given his background, employment history, training, and jobs available in your area.
Your husband can defend against any charges of willful un(der)employment by showing that he has made numerous attempts to find employment and that his reduction in income is involuntary.
Tip Expert witnesses are different from fact witnesses in that they can give opinions in their area of expertise. Possible expert witnesses in your case might include experts on custody; vocational rehabilitation; and appraisers of real estate, businesses, pensions, and other assets.
Property
The wife’s lawyer will then ask her more questions about her financial statement, or joint property statement if required by the court, taking her item by item through her assets and liabilities. He will also introduce supporting documents like bank statements, deeds, automobile titles, and mortgage statements.
She will testify about the value of property and which portion is marital and which is nonmarital. She will also testify about monetary and nonmonetary contributions she made to the acquisition of marital property, fault in the termination of the marriage, and any other factor used to determine how property is distributed in her state.
She may need to call upon additional witnesses, including experts for valuing real estate, pensions, and other assets.
Tips for Testifying
Here are some important tips to remember when you are on the witness stand:
- Answer the questions that are asked, directly and concisely. Don’t ramble on or answer a question that has not been asked.
- Direct your answers to the judge.
- Do not get upset or angry. The calm, rational party is the one that usually does best in court.
- Do not guess at the answer. It is OK to say you don’t understand the question, or that you don’t know the answer, or you can’t remember.
Rules of Evidence
As we said at the beginning of this chapter, you won’t simply tell the judge your story. The court follows rather arcane rules of evidence to guarantee a fair trial. These rules will sometimes interrupt the free flow of information from you to the judge.
For example, say you are telling the judge about the children’s preference of where to live.
You: What the children told me they would like is . . . .
Husband’s Lawyer: Objection. Hearsay.
Judge: Sustained. Don’t tell me what the children said. Next question, Counsel.
Lawyers make objections when they believe some testimony violates one of the rules of evidence.
The hearsay objection prohibits testimony about bringing in statements made outside the courtroom. This is enforced because counsel cannot examine the person who made the statement in regard to her perception, credibility, memory, and so forth.
There are many exceptions to the hearsay rule. One important exception is that the rule does not apply to the parties to the lawsuit because they are present in court and thus can be examined about their out-of-court statements. When a lawyer objects, stop talking. The judge will decide whether the question will be allowed (“Objection overruled”) or not allowed (“Objection sustained”).
Summary
You now see how everything discussed in previous chapters—understanding divorce laws, gathering information, negotiating a separation agreement, and the pleadings—forms the foundation of your trial. This chapter has given you some familiarity with the evidence you will need to present at trial and the rules of evidence that the court uses. In the next chapter, we will discuss legal procedures the court follows in a divorce trial.