Family Law Part 4: Testifying in Court

Written by Jordan J. Mruz

            More often than not, when a case gets to the point of a trial being necessary, I will have a conversation with my client and discover that they have never testified in court before. I can understand why someone would be nervous to testify in court but with proper preparation and knowledge of the process you should be able to testify confidently.

Direct Examination

            Direct examination is when one party calls you as a witness to testify. Generally your attorney will call you as their witness, but the other party can call you as a witness for them as well. When you are called as a witness and you are being questioned by the attorney who called you up to testify, this is direct examination. Generally speaking the questions you are asked on direct examination will be open ended questions (meaning more than a one word answer). If you are on direct examination by your attorney, they will have a framework for how their questions will go. They may start with general questions, then move on to a topic that there is not much disagreement on, such as property, then move to child support, and finish with custody and visitation. I do not believe there is any right or wrong way to order the questions, but your attorney should discuss with you the direction their questioning will take.

Cross-Examination

            Cross-examination occurs when the party who did not call you up to the stand, has a chance to question you. These questions will usually be leading questions (one word answers, usually yes or no). Leading questions are allowed on cross-examination and because of this, attorneys use them because they can limit your testimony to one word answers that fit their version of events. An example of a cross-examination question would be, “Isn’t it true that you have been arrested five times.” The correct answer is either yes or no. You may have been arrested five times but only been charged with a crime on one of those occasions and you want to tell that to the attorney questioning you. If it’s the other party, they probably are not going to let you answer beyond “yes.” Your attorney will hopefully do a follow up question on their re-direct examination to clarify this topic. Something to remember: cross-examination is supposed to be limited to what is brought up during the direct examination. Depending on the judge, they may be very strict with this rule of evidence, but they may not.

Redirect

            As it mentioned in the previous paragraph the party who calls you as a witness will have an opportunity for redirect after the other party has cross-examined you. Again this testimony is supposed to be limited to what was brought up in the cross-examination.

Things to Remember When Testifying

            First thing to remember is to tell the truth. It is much better to tell the truth about something on the stand than to get caught in a lie on cross-examination. Hopefully you and your attorney have discussed the areas that may hurt your case so you have a chance to testify and explain them to the judge in your own words rather than the opposing party.

            Remember to answer the question that is being asked. This is a good rule in general, but you should really remember this when your being cross-examined by the opposing party. If they ask you a yes or no question, answer with a yes or no. If they ask you about the time you got a possession of marijuana ticket in 2014, only talk about that incident and not any other things you did before or after that. You do not want to offer up more answers to the opposition that could be used against you right away. If they like what they are hearing from you, they may let you keep talking instead of objecting to your answer that was not just yes or no.

            Keeping your composure on the stand is another key. Some attorneys will try very hard to get you rattled on the stand. They may ask you really difficult questions that you do not want to answer just to throw you off. They may speed up their tempo of questions to get you to answer more rapidly than you would otherwise and maybe make a mistake. Losing your cool and making dramatic faces on the stand will not help your case.

            Last thing to remember is to stop and think about the question being asked. You do not have answer immediately upon the attorney stopping. You can pause for a second to think about the question. Make sure you heard it correctly. If you do not understand the question, it is okay to ask the attorney to repeat it or to ask it differently. It is better to get a question clarified than to offer up an answer that does not match the question. If you do not know the answer to the question, simply state you do not know.

Conclusion

            These four things are not the only things to keep in mind while testifying, but I believe they are among the most important to remember. If you remember these things and remember to breathe, then you should be able to testify successfully. 

Family Law Part 2: The Temporary Hearing

Written by Jordan J. Mruz.

During your initial consultation with your attorney you may discuss whether or not it will be necessary to file a motion for temporary custody/parenting time and child support. If you are getting divorced you may also request temporary spousal support (or alimony). The post will address the preparation for this hearing as well as the hearing itself.

Do I even need to have a hearing?

It is not required that a temporary hearing be held. Whether or not it is appropriate to have this hearing in your case is dependent on a few things. For example, if both parties are working outside of the home in full-time jobs, your case may not be appropriate for spousal support (alimony and child support will be addressed in depth in a later blog post). If there is no disagreement about who should have custody of the children then it may not be completely necessary to have a hearing for temporary custody/parenting time. An example would be if one of the parties lives in another state and it would be disruptive to the child to move them at that particular point in time. Additionally you may file a motion for temporary custody and support and after discussing with the other party (or their attorney) you two reached an agreement on temporary matters. A stipulation could then be submitted to the court without having to go through with a hearing.

What do I need to bring to my attorney?

In the Districts where I currently practice (Central/South Central Nebraska), typically temporary hearings are done using affidavits only and there is no live testimony. This means that you will either need to bring affidavits to your attorney or you will need to meet with your attorney to write them together. An affidavit is essentially a sworn statement of facts, signed in front of a notary public. The affidavits should contain information that is relevant to what your hearing is addressing (e.g. custody and visitation). Your affidavit may state where the child has lived, with whom they have lived, who has been the primary care giver, how you meet their needs, and whether there any special circumstances surrounding the child that the court should be aware of (physical or mental disability). You may also need to tell the judge the reasons for why the other party should not have custody of the child such as their violent criminal history, drug/alcohol issues, abusive behaviors, etc. It is also helpful to provide the judge with what you think an appropriate visitation plan would be. These are just a few the things that your affidavit may address.

Your attorney should also discuss with you about whether any additional affidavits are necessary and they could be from a number of people. Maybe you have a close family member or family friend that has been witness to your great parenting skills and how much you do for the child. Maybe a coworker of the other party witnessed them get into a physical altercation and the child was around to witness it. People like this can be helpful to your temporary hearing, but be sure to avoid providing extremely duplicative information. Typically the judge does not want to read 10 affidavits from your parents, siblings, aunts/uncles, and cousins that all state how wonderful of a parent you are. Once is generally enough, and usually more than two of these are not really helpful.

If child support is being addressed at your temporary hearing, your attorney will typically present the judge a proposed child support calculation. This is what you believe the other party or yourself should pay for child support. You should bring your attorney pay stubs (at least a month’s worth of pay stubs, if not more) or if appropriate, your recent tax returns. The other party’s income information will be necessary to create an accurate calculation, but you may not have this information in your possession. Your attorney should be able to work with the opposing attorney to obtain this information.

What happens at the hearing?

As stated above, in the Districts where I practice, the hearings take place using only affidavits. Depending on the judge, the hearing itself may take place in the Judge’s chambers (not in the court room) with only the attorneys present. In other counties, the hearing will take place in open court without the clients present. In some counties the hearing will take place in open court with the clients present. Your attorney will advise whether or not you need to be present.

District rules will provide how soon before the hearing the affidavits needed to be exchanged and when responsive affidavits must be filed (rebutting what the other party said in their affidavit). At the hearing these affidavits and other exhibits (such as a child support calculation) will be offered and the parties will have a chance to object to the affidavits and exhibits. After the judge accepts the affidavits into evidence the attorneys will each have a chance to make an argument. The judge may make a decision at that time or they may take the matter “under advisement” so they have a chance to review the affidavits and issue a written order. That order may be available the next day or it may take a few weeks. Remember to be patient.

Please remember that this information is relevant only to Nebraska law and even within the state, there are specific rules for each District that your attorney should be aware of. This is meant to provide general information on what to expect with a temporary hearing. As always for more precise information, seek out assistance of a local attorney in your area.

Family Law Part 1: The Initial Consultation

Written by Jordan J. Mruz.

My name is Jordan Mruz and I am currently in my third year of practice at Fye Law Office. My practice does not have a focus per se, but family law cases are a large portion my work up to this point and I hope it will be for years to come. This will be first installment of an ongoing series where I will discuss the various aspects of different family law cases.  Look for future posts that will include discussions about what is required of you by statute, what a final trail may look like, and anything in between.

Are you married and considering getting a divorce? Are you considering leaving your significant other with whom you have children? If your answer is yes to either of these questions, you may be considering speaking with an attorney. This post will hopefully provide you with some guidance on what to be prepared for when you go to meet with an attorney.

One of the first things someone asks me over the phone is usually, “Do I need to bring anything?” The correct answer is (in true legal form):  maybe.  If you have a previous court order (and you are seeking to modify this custody order), then this is a great piece of information to bring to your consultation. If you cannot find your copy, your attorney should usually be able to look up the case. You may have text messages or emails from the other party showing a threat against your safety or claiming they will never let you see your child. You may have school records that show your child being absent from school for extended periods of time when they are staying with the other party. These are the kinds of things that can be helpful to prove your case. There is not always physical documentation of the evidence you need and I meet with many people in this position.

Many people come into my office and simply do not know where to start. I encourage these people to start with simple things such as: who the other party is, whether your are married, where you were married, when you were married, names and ages of children. These questions usually allow the person to open up and get to the more intimate details of why they need assistance. Tell the attorney your story and they will guide you through how that story plays out with the legal system. They will explain to you the basic process of a divorce/custody action, what will be required of you by the court, as well what the potential outcomes are for your case.

No two cases are exactly the same, so your attorney may explain how based on the information you provided, what direction they believe your case will take. I believe it is the best practice to tell the people I meet with what they can realistically expect for an outcome. I do not believe in telling people simply what I think they want to hear (that they will absolutely get X, Y, Z, etc.). I believe these types of open and honest opinions about the case early on can help the case reach an ultimate resolution with greater ease.