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Divorce Truths - Witnesses

You know more information about your marriage and the behavior of your spouse than anyone. However, do not underestimate the testimony of strong witnesses. They will help the judge understand why judgment should be in your favor.

Witnesses can be fact witnesses who testify to facts, or expert witnesses that can testify to facts and give their opinions. Expert witnesses also can assist the court in complex issues.

After your attorney interviews all potential witnesses, they will tell you the witnesses they believe will strengthen your case. This will depend on which issue the witness needs to support.

If you have a complex financial matter, an accountant or financial planner may be considered. If you have a custody battle, teachers and child psychologists should be considered. Your attorney will select the order of presentation of your witnesses for maximum effect. Live witnesses are more effective witnesses than having your attorney or someone who works for your attorney "read" the answers to questions from earlier recorded depositions. In some instances, however, a deposition may be the only available means of getting testimony into evidence from some professionals.

Lay Witnesses

A lay witness is a witness that is not an expert. They testify to facts they know firsthand. Whenever possible, usually mature witnesses make very credible witnesses. They also are not intimidated by the proceeding. Consider: Neighbors, friends, teachers, and coaches.

Talk With Your Own Prospective Witnesses

Few people volunteer to testify in a divorce. Your attorney can compel them to testify with a subpoena, but it is usually better for your case if your lay witnesses want to help without being forced to. Talk to them before your attorney does. As their friend or relative, you have a better chance of persuading them to testify than your attorney does. Also, you don't want your attorney charging you for several hours talking with potential witnesses who aren't going to be either helpful or cooperative. Find out if they do in fact have solid first hand knowledge of information or facts. If they have knowledge pertinent to a major issue but refuses to testify, your attorney may have no choice but to subpoena their appearance in court. The bad news, of course, is that they may claim no knowledge once they are placed on the stand to testify, if they sincerely do not want to be involved.

Some voluntary witnesses may request a subpoena so they may submit it to their employer to come to court. Also, your attorney will try and advise your witnesses as to the time of the day they will testify, so they don't have to remain at court all day. Unfortunately, the attorney may not be able to estimate this, and it may require your witnesses to spend a lot of time waiting outside the courtroom.

Guardian Ad Litems

If custody is in issue, you should discuss with your attorney requesting a guardian ad litem. This individual (usually an attorney) represents only your children. A favorable recommendation from a guardian ad litem will greatly increase your chances of having custody of your children.

You and your attorney should strive to make the guardian's job easier. Make sure the witnesses you want interviewed are accessible to the guardian. Make sure documents that you want the guardian to consider are sent to them. When the guardian requests a meeting at your home to interview you and your children, you need to be flexible to their schedule.

Ask your attorney to find out if there is anything that you should do to assist the guardian in gathering information. Aside from the positive feedback of cooperation, you minimize the time the guardian has to spend on your case, and the cost for their services because you may be responsible for at least a portion of their fees.

Child Psychologists

In major custody battles some clients ask whether they can afford a child psychologist. The real question is can you afford not to hire one. If you are fighting for your children, you don't just want to tip the scales of justice; you want to turn them upside down.

A child psychologist is a very valuable resource, and depending on their courtroom skills, they can be very persuasive. They can greatly assist the court.

If your attorney is experienced in custody matters, they can recommend child psychologists. It is preferable to retain those psychologists who have testified many times before the same judge.

Psychologists are very valuable witnesses although they are very expensive. They usually require their fees in advance of trial. They usually require many hours of pre-trial assessments on which they base their testimony. Your attorney will not take an expert to trial unless the expert supports your case.

Don't confuse a psychologist who will testify for you with a psychologist appointed by the Court who conducts a custody evaluation of all the parties and the children. This requires consent of both parties or an order from the Court. Your attorney can petition the Court for this.

Private Investigator

In deciding whether to hire a private investigator, you need to evaluate the possible value of the information they may obtain. People get careless. The longer a spouse engages in inappropriate activity, the more confident and bolder their behavior becomes.

If you have a spouse in a long term marriage who has never worked but can prove adultery, that would have an effect on any alimony they may seek. The cost of an investigator may be small compared to what you might save if adultery is proven.

However, if you are only fishing for information, you should restrict the time and money that you spend on the investigator. Sometimes clients just want to know what their spouse is really doing, and are willing to pay for that knowledge.

Don't follow your spouse yourself. You may be subjecting yourself to a harassment or stalking claim.

Spouse's Alleged Lover

Although they rarely admit anything on the stand, there is a strong psychological effect on a spouse when their alleged lover is subpoenaed to Court. This is a tactical consideration for your attorney. It obviously puts tremendous pressure on your spouse but sometimes that is enough.


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