Family Law & Divorce Trials

PREPARING FOR AND PARTICIPATING IN A DIVORCE TRIAL / FAMILY LAW TRIAL IN ARIZONA

Whether you have an attorney or not, the following information should help you prepare for your divorce or family law trial, or for the eventual settlement of your case.

Preparing for a divorce trial or other type of a family law in Arizona has certain common elements regardless of the complexity of the case. However, in more financially complex cases, additional things usually need to be done. If you have an attorney, hopefully your attorney has complied with all the requirements and needs of your case. If you represent yourself, you should at least consult with an attorney to make sure that you have covered the basics.

Trial preparation should start early in your case, even if you plan on settling the issues. The same steps generally need to be taken to ensure that you have all information and documents needed whether you end up settling the issues or going to trial.

The to-do list below should be started early in your case in order to maximize your ability to settle your case on terms that are fair. If you don’t settle your case, you will want to already be in the position that you will be prepared and able to present your case at trial.

Identifying Assets and Debts:

If possible, assets and debts should be identified as early as possible so that issues involving value of assets, whether they are sole and separate, and other issues can be properly addressed.

Disclosure Requirements:

You should start gathering any documents relevant to your case early on.  There are disclosure requirements in Arizona divorce and family Law cases which are outlined in Rule 49, Arizona Rules of Family Law Procedure. You are required to disclose documents and information to the other party throughout your case. This includes providing bank and other financial statements from at least six months prior to filing to the present, listing your witnesses (including expert witnesses) and what they will be testifying to, and providing documents that you may intend to use at trial. If you do not comply with these requirements, you may be precluded during the trial from presenting some of your evidence and testimony.

Discovery:

Discovery generally means written requests for documents and information to the other side or third parties. Discovery also includes verbal depositions where you ask the other party or witnesses questions under oath in front of a court reporter. Formal discovery parameters are outlined by the Arizona Rules of Family Law Procedure. The most common discovery document in Family Court is Uniform Interrogatories, which is a standard list of questions that are presented to the other party regarding income, assets, debts, parenting issues and various other matters. You may obtain this form by downloading  a copy of the Arizona Rules of Family Law Procedure on line through the Superior Court of Arizona website. You may also submit Non-Uniform Interrogatories, which are prepared questions specific to your case that are not part of the described Uniform Interrogatories. You may want to submit a Request for Production of Documents to the opposing party requiring him / her to provide certain documents relevant to your case. You can submit a discovery request to inspect property, to have a psychological evaluation conducted, to have a vocational evaluation conducted, and many other such requests. You can issue subpoenas to third parties (persons or businesses) to obtain documents and information that you cannot obtain from the other party. You may take the deposition of the other party, his / her witnesses or any other person (upon permission by the Court) that may have relevant information. It is always smart to consult with an attorney early on to determine your discovery needs. If you do not conduct discovery, you may have limited information and evidence to present during your trial.

It is not uncommon for parties in a divorce to make untruthful statements under oath. If you are unable to prove that the other party is untruthful, you may be stuck with the consequences. Conducting thorough discovery early on and/or taking the other party’s deposition often limits their ability to be untruthful (at least with regard to some issues).

Listing Witnesses:

If you have any people that you may want to testify during your trial regarding certain issues, these persons should be identified as early as possible in your disclosure documents. As addressed above, you will need to disclose the details of what you anticipate they will be testifying about.

Parenting Time / Legal Decision-Making Professionals:

If you want to have your children interviewed and/or if you desire a psychologist or other professional to submit a report and/or testify about issues involving the best interests of your children as applied to parenting time or legal decision making, you should request such appointments early on. This may include (but is not limited to) one or more of the following:  Child Interview, Family Evaluation, Limited Scope Assessment, Family Court Advisor, Parenting Conference, and Best Interests Attorney. More information is provided regarding these appointments under the parenting sections of our website.

Financial Expert Witnesses:

There may be issues in your case that require a financial expert such as a CPA, business valuation expert, etc. This can apply when an income assessment for one or both parties is necessary (most notably when one of the parties is self-employed). If a business needs to be valued, you will need to retain a business valuation expert (i.e. a broker or a CPA with special certifications in business valuations) as soon as possible.

If sole and separate and community monies have been co-mingled, an expert may be necessary to determine whether the funds have been commuted to community property or whether they are directly traceable and thus remain sole and separate. You may need appraisals of homes or other real estate and other valuable assets. Again, it is important that these expert witnesses are identified and disclosed prior to the Court’s deadlines, including their reports containing the substance of their anticipated testimony. Under Rule 49 such reports are due 60 days prior to trial unless a different deadline is ordered by the Court.

Joint Pre-Trial Statement:

This is a very important document that you must prepare and submit to the Court by it’s stated deadline. You will need to provide information regarding the relevant facts, your legal positions and requests to the Court, a list of your witnesses, your list of documents that you desire to be admitted into evidence during trial, and other information that the Court orders you to submit.

Ask an attorney:  Many people make mistakes when representing themselves. It is always smart to at least consult with an attorney regarding these matters even if you do not want or cannot afford full representation.

Preparation soon before trial:

As discussed above, it is important to draft a thorough pretrial statement in advance of trial and to make sure that all of your exhibits are delivered to the Court by the deadline. It is equally important to make sure that you have outlined your entire trial presentation in advance. If you have an attorney, the attorney should send you an outline of questions that he/she intends to ask you and your other witnesses several days in advance of trial to make sure everyone is properly prepared and that nothing important is left out.  An outline of potential cross-examination questions for the other party and his/her witnesses should be prepared in advance as well. If you represent yourself, you can use your notes when examining the other side or their witnesses, but will generally not be able to use your notes when you testify. Thus, if you represent yourself it is important to make a mental note of all issues that need to be addressed and time yourself in advance.  We always meet with our clients in advance of trial and rehearse their testimony so that we can ensure that the answers are brief where necessary, persuasive, and will fit within the time-period allotted by the Court.  This pretrial preparation phase provides us an opportunity to clarify any anticipated testimony and add or delete portions of the testimony that are less important and can be omitted so that the presentation can be completed within the time limitations. We often think of trial as “surgical”. Questions and answers should be refined and polished so that you can present the most persuasive case possible without wasting time with confusing or ambiguous presentations.  You (or your attorney) may not stick strictly with the questions on the outline, but having such outline ensures that you have the basic structure in place before you get into the very stressful and fast-moving reality of being in trial.

What are divorce trials / family law trial like in Arizona

Divorce and family law trials can be very nerve racking whether you have an attorney or not. In most cases, you will not feel like you had adequate time to present your entire case. Accordingly, making your presentation short and sweet where possible, and limiting your exhibits to what is necessary is generally the best approach.

Trial Exhibits:  The Court will issue a written order requiring that you provide all your trial exhibits to the Court at least a week in advance of trial. These are documents that you want to present at trial that are relevant to your issues and that you have previously disclosed to the other side.

What is Evidence?

“Evidence” is a broader term that includes pretty much anything that you want to present to the Court. Evidence is not just your trial exhibits, but your testimony and your witnesses’ testimony.

Can children testify during trial?

Minor children (i.e. younger than 18) are generally not allowed to testify during a family law trial or even be present during the trial. Thus, if you desire that the minor children provide important information (i.e. custody and parenting issues etc.), you will generally want to request well in advance of trial that they be interviewed by a professional appointed by the Court, or that a family evaluation in some form be conducted.

How long is a trial and who makes the decisions?

Unlike civil cases, divorce and other family law trials take place before a judge. No jury is involved. Generally family law trials last anywhere from one hour to one full day. The Court will tell you in advance how much time is going to be allowed for your trial.  The Court sometimes allows more time for trial than what is scheduled but will rarely provide more than one Court day.  If you do not think the time allotted for trial is enough, you will want to file a motion in advance (or ask the Court for additional trial time when it is being scheduled). If you wait until the day of trial to ask for more time, Courts are much less likely to grant your request.

How are trials organized?

Once the Court calls the case to trial, the Petitioner will put on his or her case first. This includes the Petitioner testifying and having his / her witnesses testify. (Some exceptions may apply).

Once the Petitioner has completed his / her case, the Respondent will proceed with presenting his / her case. This includes the Respondent testifying and having his / her witnesses testify.

Once the Respondent has completed presenting his / her case, the Petitioner will have an opportunity (if time permits) to submit rebuttal testimony in response to the Respondent’s case. The Petitioner can also call back a witness or even call a new witness if such is in response to evidence presented by the Respondent.

The following is a more detailed summary of a trial presentation. The parties do not have to testify prior to calling their witnesses, but can if they choose to do so. The parties can present their testimony and evidence in the order they choose.

Direct Examination: The initial testimony by either a party or witness is called direct testimony or direct examination.  If you have an attorney, the attorney will ask you and your witnesses relevant questions. If you do not have an attorney, you will merely testify to all the matters you want the Court to hear that are relevant to your case. You will testify regarding the relevant exhibits that you want to be admitted into evidence, why they are relevant, what information they provide, and then ask that the exhibits be admitted. You will then call your witnesses to the stand and ask them your relevant questions and admit any exhibits that they testify to.

Cross-Examination: After a party or a witness has testified, the other side may cross-examine the party or witness. Cross-examination is not a time to “argue” with the other party or witness, but to ask precise questions that you think the answers to will help your case. It is very helpful to take the other party’s deposition in advance of trial so that you can be more precise in your cross-examination during trial.

Re-Direct Examination: After the other party has completed his / her cross-examination, the party or witness giving the initial direct testimony  can testify  to matters that should be cleared up following such cross examination.

Objections: You and the other party can object to testimony and exhibits presented by the other side for various reasons. If you do not file a notice of application of the Arizona Rules of Evidence (See Rule 2 Arizona Rules of Family Law Procedure), the Court may allow hearsay testimony and other evidence that may not be permitted if such notice is filed. Common objections include leading testimony, hearsay (i.e. when somebody testifies to something that somebody else said), and foundation (failure to provide information that the testimony that is within the party or witnesses personal knowledge, failure to provide approximate dates and other information that is important to make sure that the testimony is admissible).

Because trial time is so limited, it is extremely important to present your case in as brief and persuasive manner as possible. Many people run out of time and get so caught up on one issue that they do not have time to properly present their other issues and evidence before the Court’s time clock runs out.

Something that parties forget (and even attorneys forget) to make sure your exhibits are admitted. Because of the time limitations, it is common for a party to testify regarding an exhibit and then forget to ask for it to be admitted.  Merely testifying about certain documents may not enough. You must make sure that you ask the Court to admit the exhibits after you testify about them (“Your honor, I request that Exhibit 7 be admitted”).

What if a party lies during trial?

It is not uncommon for a party or both parties to present false testimony. Lying under oath is a crime. The Court can refer such person to the authorities for prosecution, although such is rare since it may be hard to prove somebody is lying beyond a reasonable doubt.  However, in Family Court, you do not need to prove they are lying by clear and convincing evidence. You just need to show it is more likely than not that you are telling the truth and the other side is being dishonest. By conducting discovery and taking the other party’s deposition early on, you can minimize such false testimony by knowing in advance what the other party is going to say on certain issues. The easiest way to show someone is untruthful is by having documents that show what the true facts are. You can of course testify to the truth yourself, which then leaves it up to the Court to make a credibility determination between you and the other party. If you have other witnesses that support your version of the facts, this can be helpful as well. If the Court determines that you or the other party are untruthful, the Court can do a number of things such as issuing sanctions and/or ordering the untruthful party pay your  attorney fees and costs.