Trial Preparation and Discovery for Divorce
In a contested case, after one spouse files for divorce, the often torturous, and tedious process of discovery begins. Each side sends the other lengthy lists of questions called interrogatories, which have been drafted by the lawyers and which must be answered under oath. Interrogatories are composed of questions about finances, assets, pensions, and similar financial issues. Through their lawyers, the spouses can also ask each other to produce documents such as bank statements, credit-card bills, receipts, tax returns, paycheck stubs, and the like. The lawyers will sift through the interrogatory answers and documents- and then question the spouses in person under oath at what is called a deposition. Other people who have relevant information, such as neighbors, friends, relatives, accountants, or other witnesses, may also be questioned at a deposition. A deposition takes place in the presence of a stenographer (a court reporter), who later transcribes what was said into a typewritten booklet.
Usually the lawyers are looking for hidden or "wasted" assets, in order to determine how much money, earning power, and other assets each spouse has (or had) so that they can be divvied up. In contested custody cases, the lawyers will be looking for evidence that the parent on the other side is not fit or is not the best parent to have custody.
Trial preparation efforts are important because the information that comes out at a trial depends very much on how well the lawyers understand and present the facts-both favorable and unfavorable-to the judge. Even the best case can be lost if the lawyer is unprepared, careless, incompetent, or otherwise ineffectual. Moreover, the best-prepared lawyer with the best case can also lose if the other lawyer is more effective or the judge is biased. This is stated to emphasize the element of surprise that a courtroom decision carries with it.
Regardless of whether you ultimately settle your case or litigate it to the bitter end, trial preparation is essential. Lawyers who do not prepare for court hearings or trial (because they expecting a case will settle without a trial) turn their clients into sitting ducks. If the other side senses that you or your lawyer wishes to avoid a trial, cannot afford one, or is not preparing for one, you will be at a distinct legal disadvantage. In addition to being ill-equipped for a possible trial, the unprepared lawyer cannot negotiate a settlement from a position of strength. If you come to the peace talks with no bombs or bullets, will anyone listen to what you have to say? Keep in mind, a lawyer who is unprepared for a hearing or trial is inviting the opposition to take advantage of his or her client.
Because trial preparation is time-consuming and expensive, you or your lawyer may be tempted to cut corners. Such a move could be penny-wise and pound-foolish, however, because if your case is well prepared, you should be able to proceed from a position of strength to fashion a satisfactory settlement instead of going to trial.
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COURSE OF LAST RESORT-- A divorce trial should be a course of last resort because it is here spouses make war on one another, and when it is over, they will leave the battlefield with lasting hatred of one another.
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