Free legal Advice | How to Think Like a Divorce Lawyer.
Looking for free legal advice? How to think like a divorce lawyer.
Now is when we really start thinking like a divorce lawyer.
This next phase in your case will help you to develop your positions and move toward settlement or trial. If you do this part of your case correctly, the following phases of negotiations and trial become much easier. Without taking this phase seriously, negotiations and trial could be disastrous.
Going through a family court case, means one or more aspects of your life is in turmoil. There are incidents that happen everyday that cause you stress, mess with your emotions, and can cost you financially. Perhaps the most difficult part of representing yourself is determining what is legally relevant versus what is emotionally relevant.
We have already discussed that Arizona is a no-fault divorce state. That means your spouses bad behavior, which has left you feeling hurt and betrayed, may not be legally relevant to the judge. In family law, determining what is and isn’t relevant to the judge can be a difficult task for attorneys since we are dealing with issues like “Best interest of the children,” which is not exactly a concrete concept. For someone living in the midst of turmoil it can be next to impossible. That your spouse is an abusive alcoholic is certainly legally relevant to child custody issues,that your spouse is a chronic cheater is not necessarily relevant to spousal maintenance, but may be relevant to property division. This section will help determine what is legally relevant to your positions and how you need to prove it.
What is Evidence?
Evidence can be witness testimony or documents and other physical sources of information like photos. You must offer evidence for every element of every issue relevant to your case.
Rules of Evidence
In family court, the rules of evidence are relaxed unless one party files a “notice of strict compliance.” Under the relaxed rules, all relevant evidence is generally admissible unless it is repetitive or abusive. Generally, if it is relevant to the issues, a Judge will allow you to use the evidence. If a notice of strict compliance is filed, all of the rules of evidence including hearsay and authentication rules apply. If you are going up against an attorney and they have filed the notice, we suggest you seek advice from an attorney. He or she can help you properly prepare your evidence for submission to the court.
During the next 2-4 months, you will need to identify, compile and organize your evidence. This is a daunting task even for some attorneys, so here, I will give you step by step instructions for what to do.
Step 1: Identify What You Must Disclose and Evidence that You Need
When you argue your case in front of the judge, the judge will look at each legal issue one at a time. Your job will be to apply your specific facts to the existing law. When a judge decides the outcome of your case, it will be issue by issue. For issues such as legal decision-making and parenting time, they are required to make “findings of fact and conclusions of law.” We must keep this in mind when identifying potential evidence and later determining the evidence we will use to prove our case.
The First step in tackling this phase is to figure out what legal issues are relevant to your case, determined the legal elements within the issue, and the corresponding evidence that you need or that you have.
Potential legal issues in the case include:
- Property division
- Debt division
- Alimony or spousal maintenance
- Child support
- Child custody legal decision-making
- Parenting time
- Attorney fees
- Enforcement
- Modification
Start by identifying which issues are relevant in your case. Then look at the substantive law for each issue to determine which elements must be proven. Once you know the elements that you must prove, then you can identify what piece of evidence is necessary to establish a basis for each element.
For example, if child support is a relevant issue to your case, we will look at the child support calculator or read the statute regarding what is necessary to determine child support.
We will find that, at a minimum, to determine child-support you need to I agree upon or prove the following elements:
- The names and ages of the minor children.
- How much income does each party earn?
- Who provides health insurance for the children and what is the cost?
- Do the children attend childcare? If so, what is the cost and who pays for it?
- Do the children have any extraordinary needs for expenses?
Then for each of the five elements we have listed above, we can determine whether witness testimony or documents will be used to prove our position. If we start from the very beginning of our case thinking like a lawyer, and organizing our documents and evidence around elements of the issues, it will help us to filter out things that are happening in your day-to-day life that will not be relevant to the judge.
Continuing with our example, for element number one, witness testimony will establish the names and ages the minor children. This is almost never in dispute and almost never requires documentation.
For element number two, incomes of the parties, proving this element can be simple or complex. Usually, each party’s affidavit of financial information will be sufficient to prove income of the parties. We will talk in depth about the affidavit of financial information later.
Element Number three should be fairly simple to prove, using Insurance statements, insurance cards, and paychecks or bank statements to prove the cost of insuring the children.
Element Number four relates to childcare. Be prepared to prove where the children attend childcare and how much you pay for it receipts, a written statement from a witness/your childcare provider, you may need a calendar to show the days and times the children attended childcare if this issue is in dispute.
The same analysis applies to element number five. If your children have exceptional expenses or needs, be prepared to show that they have these exceptional needs, why the additional expenses are necessary, why your spouse or ex should help you pay for them.
How to Put Together Your File
Many people have different ways of organizing a legal file. One popular way is to break down a file into pleadings, court orders or minute entries, correspondence with the opposing party, and disclosures.
While there is nothing wrong with that approach, and it may work for you, I am advocating a different approach.
When organizing your disclosures, keep the end in mind.
At a minimum, have one folder for each legal issue (depending on the size and complexity of the issues, you may need subfolders for each element of each issue). As time goes on and new evidence unfolds (like emails from your ex saying he got a new job making $100k) you can determine which element of which issue the email is relevant to and put it in the proper file or folder.
You will also need a folder for pleadings and orders, but by organizing everything else in relation to how the judge thinks, you can stay focused and save time when preparing for trial.
How to Identify Witnesses
In most Arizona counties, you will be given very little time to prove your case. Because of that, use of witness testimony is usually kept to a minimum, but can make or break a case. You will need witness testimony if your testimony is not sufficient on the issue or element of the issue, and there is no documentation to prove what you are trying to establish.
A witness can be anyone with personal knowledge on a relevant issue. A grandparent or friend could be a witness to an incident of domestic violence. An employer could be a witness on anticipated future income.
What about Expert Witnesses
Expert witnesses are people with special training or knowledge who are asked to give their opinion on a given issue. Expert witnesses like parenting coordinators, court appointed advisors, or forensic psychologists are often used to provide opinions and facts surrounding issues related to parenting time and legal decision making. They are most often appointment by the court, so there is no need to worry about disclosures.
The other type of expert witness frequently used in family law cases are financial experts. A financial expert may be used to testify about the value of certain assets, or the earning capacity of a spouse, or the value of a family-owned business. These experts are you usually hired by one of the parties or hired jointly to render an opinion. If you hire a financial expert or any expert witness that the court is unaware of, you must disclose the name, credentials, and subject matter the expert will testify on 60 days prior to trial. Sometimes you need only the report of the expert and you do not need them to actually appear in court and testify.
There are certain types of cases that are very difficult to prove without an expert.
- If your case involves domestic violence and you don’t have direct evidence of that violence, you should consider hiring an expert or asking that the court appoint an expert for you.
- If your case involves suspected parental alienation syndrome, these are very difficult to prove, and you will need an expert.
- If you suspect your spouse has a mental illness but it is undocumented, you will need an and a psychological evaluation to prove the mental illness exists.
- If your case involves a business and it must be valued, you will need a business valuator to render an opinion of value.
- If you have already had a temporary order, presented evidence on an issue such as spousal maintenance, and received an unfavorable order, consider hiring an expert witness to offer different facts or back up your claims, at the next hearing.
- If your case involves separate and community property, co-mingled funds, or other complicated financial issues, consider hiring an expert witness.
This is by no means an exhaustive list, just examples for your consideration. Once you have identified each issue and the corresponding elements, and you have determined the evidence that exists for each element, you can evaluate the strength of evidence that you have and consider what role witnesses will play.
Given the framework, we can now dive in to disclosures and discovery.
Rule 49 of the Arizona Family Law Rules of Procedure lays out what you are required to disclose even without the other party asking for the documents and even if you do not intend to use the documents as evidence. In reality, self-represented litigants rarely follow all of the rules and rarely disclose everything that they need to under rule 49. Rule 49 can help you identify what might be important and what you may need to get from the opposing party.
Thankfully, it is also broken down by legal issues.
Mandatory Disclosures
In Arizona, evidence that is not properly disclosed cannot be used in trial. This means that if you do not follow the correct process for disclosing your evidence, the Judge may refuse to look at what you bring to trial despite all your hard work identifying, organizing, and preparing your evidence. This can be devastating and could mean losing on very important issues like child support or parenting time. It could mean you walk away with less than half of the community property. You could literally lose on every single issue, if you do not take this part of the process seriously and approach it with diligence.
Disclosure simply means that you have provided the opposing party a copy of the evidence you intend use. You may find it easier to organize your documents and online files. We do much of our disclosure with their law firm electronically to the opposing parties as well.
Disclosure statements are required under the rules and simply act as a guideline and cover page for your disclosures. Within the statement, you will identify the names of the documents, your position on the relevant legal issues, the names and addresses of any witnesses you intend call, Andy’s summary of what you anticipate they will testify to. It can feel very counterintuitive to tell the opposing party exactly what you plan to present to the court. However, it’s not only required under the rules, it should also help you to reach settlement. The idea being that if your ex knows how strong you’re cases for child support there is simply no need to litigate the issue.
Completing and filing a disclosure statements also puts the court on notice what you have disclosed and when. This prevents the opposing party for making false claims they have not received your disclosures.
You do not have to file your disclosure statements, but you can. You do not file the documents you are disclosing. They are simply given to the opposing party. Your first disclosure statement is due to the opposing party within 40 days after the response has been filed. You may complete several disclosure statements throughout your case since the duty to disclose is ongoing.
The Affidavit of Financial Information
The most important and non-negotiable mandatory disclosure is the Affidavit of Financial Information (AFI). If your case involves child support, spousal maintenance or attorneys fees, you and your ex will need to submit a completed and accurate AFI. This is one of the only disclosure documents that must be filed with the court.
It is very important that the information you put on your affidavit of financial information is accurate. Within the documents you will need to identify your household budget, your sources of income, your debts, your assets. We have broken the task down into a three step process.
Step 1-Assess Income
The first step is to evaluate the total amount of income of the spouses. If one or both people work at salaried positions, this is fairly straightforward.
Calculating income can be more challenging, however, if the other spouse is self-employed without a set monthly income. Income from sources other than employment, such as trust funds, retirement accounts, government benefits, and royalties should also be assessed.
For several aspects of a divorce, including child support and spousal maintenance, it’s imperative to know the income each spouse receives. If you still have access to the house and all of the documents and accounts, it is very important that we get this information now.
Go through the house and identify all of the information you possibly can regarding income. Identify where the accounts are held, the user names and passwords, statements, W2s, tax returns, 1099s etc.
Step 2- Document Income
Start Printing! There is no telling how long these accounts will be open. Print bank statements, copy W2s, tax returns, profit and loss statements etc.
For the self-employed spouse, it includes additional documents such as bank account and credit card statements, business records, and loan applications.
Determining the income of a self-employed person is not always simple, but having access to the appropriate documents can make it much easier. Once a spouse moves out, gaining access to those documents can diminish or even disappear.
Step 3- Create a Budget
After income has been assessed and documented, the final step in figuring out the financial situation involves creating a current and prospective budget. The budget should detail your income and expenses both currently and what you anticipate them to be in the future (if you are married and getting a divorce). The same painstaking detail used in documenting income should be applied here in gathering bills, financial statements, and other documents that show the family’s expenses. This is much easier to do while living in the home and without the possibility of anyone hiding assets or information.
You will use the AFI to state both current and future anticipated expenses. This requires planning!
This budget can be critically important in determining how much spousal maintenance will eventually be paid or received. The laborious work of creating a thorough budget is well worth the effort, and proving the accuracy of the budget with documents is even more valuable in terms of preventing further conflict.
Consider the free tool Mint.com to help you organize your information and assist with the creation of an accurate budget.
The AFI requires asset and debt information as well, however, those sections of the AFI are more important in a divorce than in an action to establish custody for unmarried parents or in a modification.
If property division is an issue (because you are going through a divorce), you will need to identify your assets.
You should itemize all of the assets on a spreadsheet (use Mint.com for a free resource to build your asset picture), detailing the date the asset was purchased, the purchase price, and the estimated current value.
For some assets, such as the home, this is fairly straightforward, while other assets will be more difficult to assess. It’s unlikely that most people have kept records of the purchase date and price of every piece of furniture, collectible, and other home furnishing they own.
It’s important to make as complete an itemization as possible, however, remembering to also check the contents of any self-storage facilities or safety deposit boxes.
If you don’t have access to information, we will use the discovery tools to request the information from the opposing party.
Four categories of assets to consider:
- Marital residence and other real estate including lots, vacation homes, cabins, etc.
- Intangible assets, such as financial and retirement accounts, stocks, bonds, etc.
- Business interests.
- Physical assets, such as furniture, artwork, vehicles, etc.
In addition to identifying the assets, you will need to identify the debts.
If you have more than a few debts, you will want to itemize debts on the spreadsheet, detailing the amount of principal owed, interest rate, creditor, and account numbers.
Five categories of debts to consider:
- Mortgages, equity loans and other debts secured by real estate
- Auto loans and other debts secured by physical assets
- Credit cards, including store-specific cards and gas cards
- Student loans
- Tax liabilities
Some of the records and documents to photocopy:
- Tax returns
- Pay stubs
- Statements for all financial and retirement accounts
- Statements for all loans and credit cards
- Vehicle titles
- Photographs of physical assets, such as china, crystal, artwork, furniture, computers, etc.
This can be a time-consuming task, but time spent photocopying supporting records and creating a thorough itemization will be a huge advantage.
It’s common for the leaving spouse to have limited access to the marital residence and its contents after moving out, which allows assets to disappear or be damaged.
The itemization will also prevent additional unscrupulous and unethical behavior on the part of the other spouse, and it will save money by reducing the work to be done by a lawyer who bills for his or her time.
While you are gathering all this information to complete the AFI, it still represents potential evidence, so you will want to file it away in the appropriate folders within the relevant legal issue.
Some evidence will be relevant to more than one legal issue. In that case, I recommend making a few copies of the evidence and placing all relevant evidence in each section of your disclosure/discovery folders.
Additionally, you will want to document what you have received and when from the opposing party. You could add a tab to your spreadsheet or simply create a separate folder for what you ex has disclosed and when. You can then take a copy of anything relevant to your issues and place them in the relevant folder.
What if you don’t have the information you need?
What if you have done all this work, you have dutifully disclosed and created disclosure statements and your ex is refusing to give you anything! This happens all the time, even when people are represented by attorneys. So, what can you do to get the information you need.
First, you can send a letter requesting the information you need and pointing out the mandatory disclosure rules in the Arizona Rules of Family Law Procedure.
Next, you can use the following discovery tools to formally demand your ex give you what you need. With most of the tools below, the opposing party will have 40 days to respond to your requests.
Finally, if you still don’t have what you need, you can consider filing a motion to compel. Before you are allowed to file the motion to compel you must make a “good faith effort” to resolve the discovery dispute. That means even after you have 1)asked nicely 2)provided discovery requests and 3) waited 40 days, you must still ask again before filing your motion to compel. This could mean you make a call, send an email or write a letter giving your ex a final deadline before filing your motion to compel.
If after all of that, your ex still won’t comply and the motion to compel is granted, you will also be awarded your attorneys fees. It is mandatory and not discretionary. Since you are representing yourself, I suggest you request monetary sanctions- the equivalent of your ex paying your attorneys fees. This sort of bad behavior should be punished. You can’t have a fair fight if one side won’t play by the rules. Additionally, the rules are designed to put everyone on an even playing field, working with the same information in order to achieve a fair result. If you can’t get information, it’s difficult to settle a case, forcing you to spend more of your precious resources in the emotional abyss of a family law case.
What are the available “discovery tools”
You will notice that not everything is covered by the mandatory disclosure rule 49. There may be things you want that your ex is not required to disclose. Use the discovery tools to request anything even remotely relevant to your issues. Which tool you use depends on what you are requesting.
Note* These legal documents do not get filed with the court.
Interrogatories
A frequently used and very useful discovery tool is interrogatories. You can send both uniform and non-uniform interrogatories to the opposing party. Interrogatories are questions that must be responded to in writing by the opposing party within 40 days of receipt. This locks in the answer of the opposing party and provides valuable information you can use in making your case. As an example, the uniform interrogatories ask for the party to list all bank accounts, assets, insurance policies, pending litigation claims, etc. If your case has hotly contested issues, consider using the uniform interrogatories as a fantastic discovery tool for your case. The answers are almost ALWAYS useful.
Request for Production of Documents
Like the interrogatories, a Request for Production of Documents asks that the other party deliver to you the documents/things you are requesting within 40 days of receipt. You can ask for any and all relevant documents including Quickbooks files, criminal convictions, drugs tests, even medical records. You can even ask for a computer or tablet to have a forensic evaluator search for money or evidence of crimes like child pornography or drug dealing. This is a fantastic tool to accompany interrogatories.
Request for Admissions
Requests for admissions are used less frequently than the two tools above, but can provide valuable information and insight for less money than the cost of a deposition. In a request for admissions, the opposing party is asked admit/deny questions and must either admit or deny the questions that you ask.
Depositions
Arguably, depositions are the most powerful discovery tool available to you as a litigant. A deposition allows you to ask any question that you would like of the opposing party (with few exceptions) under oath and on the record. This gives you the ability to test out questions and determine the opposing party’s demeanor and ability to answer difficult questions. It also locks down their story. You can depose both parties and witnesses by serving a “Notice of Deposition” upon the party or witness(es) you intend to call. Then, you will want to schedule a court reporter to take the deposition. Give yourself enough time to get the written transcript well before trial.
Subpoena
A subpoena allows you to get documents from third parties such as banks, or command a witness to attend a hearing. A subpoena must be issued by the clerk of the court and served upon the intended recipient.
Each discovery tool can help you to achieve a given objective. As always, know your strategy and what you must prove to determine which tools to use. Consider the cost benefit analysis of each decision and take advantage of either a certified legal document preparer, lay legal advocate, or an attorney for further information.
What If you don’t want to follow the rules? Here are two client stories related to the disclosure and discovery issues for you to consider.
- A client story- undisclosed assets
The client had been married for 30 years. She had raised and home-schooled 6 children and helped build and manage the family business that supported them. She had been a committed and devoted Wife. The “baby” was 10 and still at home along with his sister who was a senior in high school. Honestly, Dad didn’t seem all that interested in the kids anyway. She discovered he had been leading a double life. His online dating profile stated he was 10 years younger and earned $500k/year- twice as much as he actually earned running their dental practice.
We had been working together for a year on her very complicated divorce. She had received her divorce decree, but items were missing. The judge failed to divide all of the property! She was devastated. She just wanted to be done! We had two options: appeal or motion for a new trial on the property issues and ask that the Judge simply divide the assets. We did the latter and the Judge granted a new trial. Ug. This was not ideal.
In the meantime, we kept digging. This is when we found huge amounts of undisclosed accounts. All while Husband was claiming he had no money to pay child support and spousal maintenance, he was sitting on $100k in a hidden bank account!
So, what happens when you find hidden money?
First, you get an emergency order freezing the funds so they cannot be spent by your lying, cheating, no good, dirty, rotten spouse.
Then, you prove at trial that the funds were undisclosed. Because we have done our job and affirmatively played by the rules disclosing everything, and we have sent discovery requests followed by letters requesting all documents, we are given ALL of the money.
That’s right. When one spouse hides money during a divorce we can open the case and be awarded all- not just the community portion of the money.
It was a good day and a great victory for my client.
Billie Tarascio
Letter- The Doctrine of “Clean Hands”
There is a legal defense known as the doctrine of “clean hands.” It can be most easily translated as “S/he did it too” (insert bratty voice here). Anyone who has children or who has been around children is familiar with the commonly used defense.
Johnny comes to you looking for vindication and says: “Suzy took my blanket and she won’t give it back!” You talk to Suzy who says “But he took my doll!”
This scenario plays out in courts all over the country with a slightly different variation of the facts. The clean hands defense most recently reared its head in a case I was involved in regarding hidden income.
I represented Father. We believed that Mother was hiding thousands of dollars in rental income each month, which should be factored into Father’s child support obligation. Mother owned two homes, a rental and the home where she resided. We believed the rental property was owned free and clear and the residential home carried a mortgage. Mother simply stated she had a net rental income of $50/month. She refused to supply the mortgage documents.
We started our pursuit of discovery with a letter to the opposing counsel requesting clarification on the subject and reminding him that the documents and questions we were asking were well within the mandatory disclosures required under rule 49. When we did not receive an answer to the letter, we sent uniform and non-uniform family law interrogatories clearly and unequivocally requesting that Mother supply us with each property she owned, what was owed on each property, who lived in the property, and a rental agreement for any rental property.
While Mother responded to many of the questions within the interrogatories, she did not answer the questions regarding her properties. At this point, we are very close to proving our allegations that she has the additional income through her avoidance. Our next step is to file a motion to compel. This motion asks the court to compel Mother to hand over the information and answer the interrogatory. If it is granted, attorney’s fees are mandatory, meaning Mother will have to pay Father’s attorneys fees associated with the discovery attempts.
On the day of the hearing, we set out to make our case on both the rental income and why Mother should pay Father’s attorney fees due to her failure to comply with the rules and respond to our reasonable requests. Father offers testimony about why he believes Mother is hiding income and why she has acted unreasonably and cost him additional attorneys fees. We have planned well and executed our strategy and the Judge seems to be aligning with our position. Then Mother’s attorney begins cross-examination of Father. The last question he asks is: “Isn’t it true you also have rental income that you have failed to disclose?” It is clear from Father’s face that he does, indeed, have rental income he failed to disclose. Father attempted to explain that it was only very recently acquired, and, it is only a minimal amount of rental income. But the damage was done. The Judge stated he would use both parties income from their AFI. Father would not get attorneys fees and Mother would not be imputed the additional rental income in the child support calculation.
What is the moral of the story? It is essential that you comply with the rules of procedure in family court. Here is a link to the whole set of the rules. Unfortunately, if you miss something, or fail to comply with the rules, the opposing party may use it as a defense. In this case, my client spent thousands of dollars perusing information and attorneys fees. His failure to mention a $30 rental income on his updated AFI, cost him thousands of dollars in overpaid child support and attorneys fees.
Our duty to disclose is ongoing. If something changes, you must disclose.
This post was written by Attorney Billie Tarascio of Modern Law. We hope you enjoy the legal information and understand that it is not a substitute for legal advice from an attorney.