Assignment: Draft a Divorce Decree

THE DIVORCE TRIAL

KEY TERMS Appeal

Bench trial

Bureau of Vital Statistics form

Claim for relief

Contested hearing

Custody affidavit

Default trial

Dissolve

Divorce trial

Document

Final argument

Financial disclosure affidavit

Habeas corpus

Judgment

Judicial pretrial

Merger

Military affidavit

Pretrial conference

Stipulation

Testimony

Theory of the case

Transcript

Trial notebook

Unconscionable

Uncontested hearing

Wage execution

The discovery process is now complete. The discovery material has been an-alyzed. The witnesses have been identified. The custody evaluation hasbeen prepared. The parties have either reached an agreement or have iden- tified areas of disagreement. The parties are now ready to proceed to the next step—the ddiivvoorrccee ttrriiaall,, the process in which both parties present their case to the court for its final hearing. Divorce trials are for the most part bbeenncchh ttrriiaallss,, which means that the trial is conducted before a judge, not a jury. In some jurisdictions like New York and Texas, the parties can demand a jury trial in divorce cases. In a

14C H A P T E R

334 CHAPTER 14

bench trial the judge is both the trier of fact and law. The family court judge is knowledgeable in the area of domestic relations and his role is to apply the law, which includes statutory and case law, to the particular facts in the case before him and render a decision that is fair to both parties.

Divorce trials are open to the public so anyone can sit in and observe the case. Courtrooms may be sealed upon motion of the parties to protect children of the marriage when the trial issues are of a particularly sensitive nature. Divorce files are also open to the public and may be viewed in local courthouses at the clerk’s office.

Divorce trials are either uncontested or contested. Whether the case is con- tested or uncontested, the paralegal must send a formal notice to the court indi- cating that the case is ready for the trial list. (See Exhibit 14–1.)

UNCONTESTED HEARING In an uunnccoonntteesstteedd hheeaarriinngg,, the parties have either reached an agreement re- garding the issues surrounding the dissolution of their marriage (i.e., alimony, property division, child custody and support, attorney’s fees) or one party is de- faulted for failure to appear. A ddeeffaauulltt ttrriiaall takes place when one of the parties to an action has failed to appear at the scheduled trial date even though she has received proper notice of the proceedings. In this case, the court will proceed with a default hearing and sever the marriage. It is important that the respondent/

FFIIGGUURREE 1144––11 Divorce trials are generally bench trials, in which there is no jury. The judge acts as both the trier of fact and law.

THE DIVORCE TRIAL 335

defendant file a cross-complaint so in the event the petitioner/plaintiff does not appear, the court can proceed on the respondent/defendant’s cross-complaint.

Most divorce cases proceed as uncontested matters. Many couples resolve their major issues through negotiations between themselves, through their re- spective attorneys, or with a professional mediator. The parties then preserve their agreement in writing. The case must then be put on the court calendar as an un- contested hearing.

Every jurisdiction has specific procedures for requesting a trial date in either an uncontested or contested dissolution matter. The paralegal should become fa- miliar with his particular state’s requirements for getting a case on the court cal- endar. In addition, some jurisdictions may also provide preprinted forms to facili- tate this process.

Uncontested divorce trials are very brief in duration. The court will first confirm service of process on the defendant spouse. This means that the judge determines whether service of the divorce complaint/petition was adequately made on the defendant/respondent. In the case where there is a nonappearing defendant, the moving party must provide the court with a mmiilliittaarryy aaffffiiddaavviitt in accordance with the Soldiers and Sailors Relief Act 50 USC §520 (1982) to prove that the defendant is currently not serving in one of the armed forces. (See Exhibit 14–2.) This requires contacting each branch of the military to determine whether or not the defendant is in the armed forces. (See Exhibit 14–3.) When requesting a military affidavit, the paralegal should provide the defendant’s name, address, Social Security number, and date of birth. In addition, a small fee must accompany each request.

Some jurisdictions do not require the parties to appear in court if the divorce is uncontested or if there is a default. In these jurisdictions the parties are merely required to file the appropriate paperwork with the court.

In matters where the parties have worked out a settlement or separation agreement, the plaintiff/petitioner will be called to the witness stand and put un- der oath. The plaintiff’s attorney will question her briefly on the allegations made in the complaint/petition, which is necessary to establish the statutory grounds for a dissolution of marriage. The judge may also direct some questions to the parties.

If the parties have executed the separation agreement, the original is pre- sented to the court and reviewed by the judge. Separation agreements are usually approved by the court unless the terms of the agreement are deemed by the court to be uunnccoonnsscciioonnaabbllee,, unfair, or one sided. The court must determine if the par- ties are aware of the contents of the agreement, that they understand it, that it is their free and voluntary act, that it was not made under fraud or duress, and that the assets have been fully disclosed. Provisions regarding alimony and property di- vision will not be scrutinized as carefully as those provisions dealing with child custody, support, or visitation. The court also has an interest in determining what economic position the parties will be left in after the divorce. If the court finds the agreement unconscionable, it will order the parties to go back to the drawing board and reconsider certain provisions.

If the court accepts the parties’ agreement by finding it to be fair and equitable, the court will first dissolve the marriage, then the court, upon request of the par- ties, will incorporate the parties’ agreement into the divorce decree. This is known as a mm ee rrggeerr.. Once the settlement agreement has been merged with the divorce decree, the terms of the agreement are now considered court orders.

A merger affords the parties with the postjudgment remedies of contempt of court proceedings and modification. Without a merger, the settlement agreement

is a contract between the parties, who will be left with contract remedies in order to enforce or change their agreement. If a spouse fails to comply with the terms of a separation agreement that has been merged into the divorce decree, the ag- grieved spouse may seek contempt of court proceedings to enforce its provisions. A merger also allows parties to seek modification of certain provisions as long as they can prove that there has been a substantial change in circumstances since the entry of the original decree.

CONTESTED HEARING Parties that have been unable to reach an agreement regarding issues of alimony, property division, visitation, and child custody and support will have to let the judge make those decisions. A disputed divorce trial is known as a ccoonntteesstteedd hheeaarriinngg.. Although contested trials give the client their “day in court,” they can also be very stressful and their outcome uncertain.

Parties who have negotiated a settlement agreement are more likely to be con- tent with the final results because they actually had some degree of participation in its formation and are more likely to cooperate with its terms because it was agreed to voluntarily. Once a case has been turned over to a judge, there is no telling what the result will be.

336 CHAPTER 14

FFIIGGUURREE 1144––22 Although contested trials give clients their “day in court,” trials can be stressful and their outcomes uncertain.

THE DIVORCE TRIAL 337

Contested hearings may also increase the parties’ hostility toward each other. This has a particularly devastating result when children are caught in the middle. Contested hearings can also be very expensive. Clients incur additional legal fees and expenses such as sheriff’s fees, expert witness fees, court costs, transcript fees, appraisal reports, investigations, or evaluations prepared by third parties.

Why then, despite these consequences, do some divorces end up in a contested trial? The trial process provides a forum where opposing parties can vigorously liti- gate issues of law and fact before an impartial third party. Unfortunately, the hostil- ity surrounding a broken marriage can often spill into the courts. Some parties find that a proposed settlement is unfair and refuse to accept it. The other spouse refuses to change or modify his position, hence the parties reach a stalemate. Sometimes clients have unrealistic expectations of what the legal system can do for them and in- sist on going to trial. Others wish to use the threat of trial to intimidate a spouse who may not wish to have every sordid detail of the marriage exposed in public. Others still play out their anger toward their spouse in the legal system by refusing to coop- erate or compromise on anything and instead contest every single issue possible.

If the case cannot be settled and it looks like it will proceed as a contested mat- ter, the appropriate forms must be filed to request a trial date.

Some jurisdictions require that parties in contested matters attend a jjuuddiicciiaall pp rreettrriiaall conference. The pretrial conference takes place before a judge. It is not a trial. The purpose of the judicial pretrial is to help parties come to an agreement. The judge’s role is to tell the parties how she would rule if this matter were to be tried before her. If parties agree to the judge’s proposal, an agreement will be drafted and the parties will bring the agreement before the court.

If the case cannot be resolved and instead heads for trial, a pp rreettrriiaall ccoonnffeerreennccee or mandatory settlement conference may be scheduled. (Exhibit 14–4 illustrates a notice to Melissa Carrey scheduling a settlement conference and ordering her and her attorney to have certain documents ready for trial.) The purpose of the pretrial con- ference is to streamline the trial process. At the pretrial conference, the parties will:

FFIIGGUURREE 1144––33 Pretrial conferences may be scheduled when it becomes apparent that a case will indeed go to trial.

1. Exchange witness lists. This will assist the parties in preparation of cross- examination and impeachment of the opposing party’s witnesses. It will also help anticipate witnesses’ testimony.

2. Disclose exhibits to be filed. Parties can review in advance exhibits that will be entered as evidence and determine which exhibits may be entered into evidence by agreement and which ones will be opposed.

3. Narrow the issues to be tried. Even though the divorce is contested, there may be issues that the parties can agree on or can stipulate to.

4. Establish if an interpreter is needed for the proceedings. A party may not be able to speak or understand the English language or may require sign language to be used. The pretrial conference serves to give court personnel advance notice of such needs so they can make arrangements to have an inter- preter present.

5. Establish if a habeas corpus is needed. A writ of hhaabbeeaass ccoorrppuuss may be nec- essary so that an incarcerated party may be transported by the states cor- rection department for trial.

6. Determine the role of the child’s attorney.

7. Determine whether children will testify and under what circumstances.

If disagreements still exist after a pretrial conference, a trial date will be scheduled. The goal of the trial process is to arrive at the truth. The way we arrive at the truth in our American system of jurisprudence is through the adversarial system. Both parties, represented by competent counsel, battle it out before an impartial third party known as a judge. The rules of evidence dictate which information can be ad- mitted and which excluded so that evidence offered at trial is reliable and untainted. The problem with the adversarial system is that it assumes that both lawyers are equally competent, that the judge has no biases or prejudices, and that both sides have enough funds in their war chest to afford expert witnesses, evaluations, ap- praisals, investigators, and every legal maneuver available to present their case.

Unfortunately this is not always the case. Some attorneys are better than oth- ers and just because a judge puts on a black robe does not mean that he is satu- rated with the wisdom of Solomon. Clients do not always possess the funds to pay for the presentation of a perfect case and may have to settle for what is realistic.

As mentioned earlier, parties who go to trial take a risk when turning their decision-making power over to the judge. They have now lost the ability to con- trol their destiny in terms of the dissolution of their marriage.

THE PARALEGAL’S ROLE IN TRIAL PREPARATION The process of trial preparation begins on the day of the initial client interview. Only a clairvoyant will know whether or not a case will go to trial. Clients will, at times, inform the attorney that the parties have worked out an agreement and there are no problems. This, however, is never a sure thing. The amicable agree- ment of today can turn into the contested bloodbath of tomorrow.

The attorney will need to develop the theory of the case. The tthheeoorryy ooff tthhee ccaassee is the legal justification for the client’s position and for the relief she is seek- ing. A thorough review of the discovery materials will help formulate some type of case strategy.

338 CHAPTER 14

THE DIVORCE TRIAL 339

Family court dockets can be extremely crowded and judges appreciate a well- prepared, well-researched, and well-organized case that does not take up time with matters that have already been resolved.

Once a theory of the case has been developed, the lawyer and paralegal must assemble the necessary evidence to present the client’s case to the court. A client’s case is proven by presenting evidence that will support the client’s claim. The client’s case is developed through the evidentiary vehicles of testimony and documents.

TTeessttiimmoonnyy is often given during a divorce trial. A list of witnesses is prepared to determine who will testify at trial. In a divorce case, the client spouse will be the primary witness and he will tell his story to the court. Other witnesses may also be called to testify: expert witnesses such as physicians and mental health pro- fessionals, social workers, teachers, appraisers, accountants, and investigators. Lay witnesses such as family members, friends, neighbors, coworkers, employers, and/or supervisors may also testify.

When calling a witness other than a client, it is necessary for the party call- ing that witness to subpoena them to trial. A subpoena is a document ordering a witness to appear under penalty of law to provide testimony at a legal pro- ceeding. (See Exhibit 14–5.) A paralegal may be in charge of preparing the sub- poenas and arranging for service of these orders by a sheriff. The paralegal must also keep track of subpoenas to make sure they have been properly served. Fail- ure to subpoena a party may result in her not appearing for trial. Records also need to be subpoenaed. Witnesses also need to be prepared by the attorney to testify.

DDooccuummeennttss that may be used at trial include the following:

▼ Financial records of parties already produced through discovery,

▼ Any court-ordered evaluations that are part of the court file,

▼ Additional psychological or psychiatric reports that either party seeks to have admitted in support of their position, and

▼ Appraisals of assets, an independent financial evaluation of business in- terests, licenses, goodwill, and pensions.

Once the attorney has determined which types of evidence will be used at trial, the next step is to prepare the ttrriiaall nnootteebbooookk.. The trial notebook provides a way to organize materials important to the case in a manner that makes them readily available for use at trial. There is nothing more embarrassing for an attorney than having to fumble and leaf through stacks of unorganized documents during a trial. It gives the client and the court the impression that the attorney did not prepare adequately.

The trial notebook is not necessarily a physical notebook, although a notebook can be used if preferred. Some attorneys organize their trial notebooks by desig- nating a series of file folders to contain certain information. These file folders will then be placed in a large folder or box to facilitate easy access during trial. Other attorneys may prefer to use commercially or self–prepared trial notebooks. The trial notebook may contain a variety of subfiles organized such that they facilitate easy access to the information.

The parties may also be required to submit certain documents to the court at the time of trial which may be prepared by the paralegal:

1. An updated sworn ffiinnaanncciiaall ddiisscclloossuurree aaffffiiddaavviitt,, indicating the in- come, expenses, assets, and liabilities of the client. (See Exhibit 14–6.)

2. A ccuussttooddyy aaffffiiddaavviitt indicating that there is no other proceeding pending in another court that affects the custody of the minor children. If a pro- ceeding is pending, the paralegal must indicate where and the nature of the proceedings. (See Exhibit 14–7.)

3. A ccllaaiimm ffoorr rreelliieeff,, which is a statement filed by a party indicating what he wants in terms of a disposition in the case. (See Exhibit 14–8.)

4. WWaaggee eexxeeccuuttiioonn forms for the purpose of facilitating alimony and child support payments through automatic deductions from the obligor’s pay- check. (See Exhibit 14–9.)

5. State-specific BBuurreeaauu ooff VViittaall SSttaattiissttiiccss ffoorrmm ss designed for the purpose of collecting statistical information on divorcing couples. (See Exhibit 14–10.)

6. SSttiippuullaattiioonnss,, which are written agreements where parties agree that cer- tain facts are true or that certain procedures are to be followed.

The client should be notified by phone and then in writing regarding the trial date. The attorney should set up an appointment with the client prior to trial for the purpose of reviewing testimony and explaining the trial process to the client. The attorney should also review the exhibits she intends to introduce through the client so the client becomes familiar with them and prepared to testify. The client should be given directions either to the courthouse or to meet the attorney at the office. The client should also be informed to dress conservatively as if he or she were attending a religious service. A conservative appearance conveys reverence and respect for the court.

340 CHAPTER 14

FFIIGGUURREE 1144––44 Trial notebooks help the attorney access information in an easy, timely manner.

THE DIVORCE TRIAL 341

DAY OF THE TRIAL Some attorneys allow their paralegals to assist at trial. Although a paralegal may not question witnesses, argue motions, make opening and closing arguments, or raise objections, paralegals can perform many important tasks at trial. At trial, the paralegal will sit at counsel table with the attorney and client. Remember that the paralegal’s status must be communicated to the court so that neither the judge or opposing party is under the impression that the paralegal is an attorney.

The divorce trial will be heard by a judge, who will preside over the hearing. Parties may be referred to a hearing officer, referee, or a special master in courts that utilize these alternative decision makers to resolve the overflow of cases. As mentioned earlier, a divorce trial is open to the public unless the court has ordered the courtroom sealed to protect particularly sensitive cases, and in some jurisdic- tions, the parties can demand a jury trial.

The plaintiff or petitioner will be the first to put on his case and call his witnesses to the stand. The opposing party will then have the opportunity to cross-examine the plaintiff’s witnesses. Once the plaintiff has rested his case, the defendant/respondent will be able to proceed with his case and present his witnesses. During the course of the trial, the paralegal may make notes during each witness’s testimony. This is one of the most important functions of a paralegal during the trial. It is important that the lawyer focus his attention on the testimony in order to make the appropriate objec- tions or argue with opposing counsel regarding the admission or exclusion of evi- dence. If the note-taking process is delegated to the paralegal, then the attorney can concentrate on the trial. Taking notes during testimony is essential for the purpose of preparing closing arguments and cross-examination. A paralegal may also assist at trial by dealing with the client. A client should be given a legal pad and pen and in- structed to write down any questions or comments they may have during trial. This lets the client express himself without distracting the attorney.

The paralegal may also help keep track of exhibits, pass materials to the attor- ney, and deal with impatient witnesses waiting to testify. Paralegals may also run errands such as photocopying, make quick legal research trips to the court library, and make phone calls to witnesses or the office.

After testimony, each attorney argues why the court should rule in his or her client’s favor. This is known as ffiinnaall aarrgguummeenntt.. The court may decide the case immediately or render its decision at a later date. Sometimes court will require the parties to prepare briefs or memorandum of law on particular issues to assist the court in making its decision.

If the court renders its decision immediately after trial, the court must first dd ii ss-- ssoollvvee the marriage, that is, declare that the spouses are no longer married. The court will then rule on the issue of child support, property division, alimony, at- torney’s fees, and debts. One of the parties will be ordered to prepare the judg- ment, which will be signed by the opposing party and the court. The jjuuddggmmeenntt delineates the orders made by the court pursuant to the court’s decision after trial and becomes a permanent part of the court file. (See Exhibit 14–11.)

A ttrraannssccrriipptt of the trial may be necessary if the decision was rendered at the close of trial to facilitate the preparation of the judgment or the preparation of an aappppeeaall of the case to a higher court. The paralegal may have the responsibility of ordering the transcript and dealing with the court reporter’s office that will be re- sponsible for its preparation. The paralegal may also be required to draft the judg- ment in accordance with local rules.

342

EEXXHHIIBBIITT 1144––11 Sample request for trial form.

343

EEXXHHIIBBIITT 1144––22 Sample military affidavit.

344

EEXXHHIIBBIITT 1144––33 Contact information for determining whether a defendant is in the military.

BBrraanncchheess ooff tthhee MMiilliittaarryy

AA rrmm yy NNaavvyy

Army World-Wide Locator Bureau of Navy Personnel

U.S. Army EREC PERS-02116 2 Navy Annex

8899 E. 56th Street Washington, DC 20370

Indianapolis, IN 46249-5301 (703) 614-3116

$3.50; check payable to Finance Officer $5.20; check payable to U.S. Treasurer

MMaarriinneess CCooaasstt GGuuaarrdd

HQMC MMSB 10 Commander-CGPC-Adm3

2008 Elliot Road, Room 201 U.S. Coast Guard Personnel Command

Quantico, VA 22134-5030 2100 Second Street S.W.

$5.20; check payable to U.S. Treasurer Washington, DC 20593–0001

(202) 267-2321

$5.20; check payable to U.S. Treasurer

AAiirr FFoorrccee

AFPC-MFIMDL

550 C Street West, Suite 50

Randolph AFB, TX 78150-4752

$5.20; check payable to U.S. Treasurer

345

EEXXHHIIBBIITT 1144––44 Sample notice of trial date and pretrial conference.

346

EEXXHHIIBBIITT 1144––44 Continued

347

EEXXHHIIBBIITT 1144––55 Sample subpoena.

348

EEXXHHIIBBIITT 1144––66 Sample financial disclosure affidavit.

CCoommmmoonnwweeaalltthh ooff MMaassssaacchhuusseettttss TThhee TTrriiaall CCoouurrtt

______________________________ DDiivviissiioonn PP rroobbaattee aanndd FFaammiillyy CCoouurrtt DDeeppaarrtt mm ee nn tt DDoocckkeett NNoo.. ______________________________

FFiinnaanncciiaall SSttaatteemmeenntt ((SSHHOORRTT FFOORRMM))

________________________________________________________________________________________ vv.. ________________________________________________________________________________________ PPllaaiinnttiiffff//PPeettiittiioonneerr DDeeffeennddaanntt//PPeettiittiioonneerr

IINNSSTTRRUUCCTTIIOONNSS: If your income equals or exceeds $75,000.000 you must complete the LONG FORM financial statement, unless otherwise ordered by the Court. All questions on both sides of this form must be answered in full or the word “none” inserted. If additional space is needed for any answer, an attached sheet may be filed in addition to, but not in lieu of, the answer. Information contained herein is confidential and only available to the parties and persons authorized under Probate and Family Court Department Supplemental Rule 401.

1. Your Name ____________________________________ Soc. Sec. No. ______________________________________ Address __________________________________________________________________________________________

(street and no.) (city or town) (state) (zip)

Age ________ Tel. No. ( ) _______________ No. of Children living with you ___________________________ Occupation _______________________ Employer ______________________________________________________ Employer’s Address _______________________________________________________________________________

(street and no.) (city or town) (state) (zip)

Employer’s Tel. No. ( ) _____________________________________ Health Ins. Coverage [ ] YES [ ] NO Health Insurance Provider ________________________________________ Cert. No. ________________________

2. GGrroossss WWeeeekkllyy iinnccoommee ffrroomm AAllll SSoouurrcceess ((ssttrriikkee iinnaapppplliiccaabbllee wwoorrddss)) a) Base pay from salary, wages . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ b) Self Employment Income ((aattttaacchh aa ccoommpplleetteedd SScchheedduullee AA)) . . . . . . . . . . . . $ c) Income from overtime-commissions-tips-bonuses-part-time job . . . . . . . . . . . . $ d) Dividends - interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ e) Income from trusts or annuities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ f) Pensions and retirement funds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ g) Social Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ h) Disability, unemployment insurance or worker’s compensation . . . . . . . . . . . . $ i) Public Assistance (welfare, A.F.D.C. payments) . . . . . . . . . . . . . . . . . . . . . . . . . $ j) Rental from Income Producing Property ((aattttaacchh aa ccoommpplleetteedd SScchheedduullee BB)) . . $

k) All other sources (including child support, alimony) . . . . . . . . . . . . . . . . . . . . . $

l) TToottaall GGrroossss WWeeeekkllyy IInnccoommee (a through k) $

3. IItteemmiizzee DDeedduuccttiioonnss ffrroomm GGrroossss IInnccoommee a) Federal income tax deductions (claiming _______ exemptions) . . . . . . . . . . . . . $ b) State income tax deductions (claiming _______ exemptions) . . . . . . . . . . . . . . . $ c) F.I.C.A./Medicare . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ d) Medical Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ e) Union Dues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $

f) TToottaall DDeedduuccttiioonnss (a through e) $

4. AAddjjuusstteedd NNeett WWeeeekkllyy IInnccoommee 2 (l) minus 3 (f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $

5. OOtthheerr DDeedduuccttiioonnss ffrroomm SSaallaarryy a) Credit Union (Loan Repayment or Savings) . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ b) Savings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ c) Retirement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ d) Other - Specify (such as Deferred Compensation or 401K) . . . . . . . . . . . . . . . . $

e) TToottaall DDeedduuccttiioonnss (a through d) $

6. NNeett WWeeeekkllyy IInnccoommee 4 minus 5 (e) $

7. GGrroossss YYeeaarrllyy IInnccoommee ffrroomm PPrriioorr YYeeaarr . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ (attach copy of all W-2 and 1099 forms for prior year)

???????

349

EEXXHHIIBBIITT 1144––66 Continued

8. WWeeeekkllyy EExxppeennsseess (Do Not Duplicate Weekly Expenses - Strike inapplicable Words) a) Rent - Mortgage (PIT) $__________ l) Life Insurance $__________ b) Homeowner’s/Tenant Insurance $__________ m) Medical Insurance $__________ c) Maintenance and Repair $__________ n) Uninsured Medicals $__________ d) Heat (Type ______ ) $__________ o) Incidentals and Toiletries $__________ e) Electricity and/or Gas $__________ p) Motor Vehicle Expenses $__________ f) Telephone $__________ q) Motor Vehicle Loan Payment $__________ g) Water/Sewer $__________ r) Child Care $__________ h) Food $__________ s) Other (attach additional schedule if necessary) $__________ i) House Supplies $__________ _________________________________________ $__________ j) Laundry and Cleaning $__________ _________________________________________ $__________ k) Clothing $__________

TToottaall WWeeeekkllyy EExxppeennsseess (a through s) $ 9. CCoouunnsseell FFeeeess

a) Retainer amount(s) paid to your attorney(s) $ b) Legal fees incurred, to date, against retainer(s) $ c) Anticipated range of total legal expense to prosecute this action $ to $

10. AAsssseettss (Attach additional schedule for additional real estate and other assets, if necessary) a) Real Estate ___________________________________________________________

Location _____________________________________________________________ Title _________________________________________________________________ Fair Market Value $____________ � Mortgage(s) $____________ � Equity $

b) IRA, Keough, Pension, Profit Sharing, Other Retirement Plans LLiisstt FFiinnaanncciiaall IInnssttiittuuttiioonn oorr PPllaann NNaammeess aanndd AAccccoouunntt NNuummbbeerrss ________________________________________________________________________$ ________________________________________________________________________$ ________________________________________________________________________$

c) Tax Deferred Annuity Plan(s) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ d) Life Insurance: Present Cash Value . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ e) Savings & Checking Accounts, Money Market Accounts, and CDs - which are

held individually, jointly, in the name of another person for your benefit or held by you for the benefit of your minor child(ren). LLiisstt FFiinnaanncciiaall IInnssttiittuuttiioonn NNaammeess aanndd AAccccoouunntt NNuummbbeerrss ________________________________________________________________________$ ________________________________________________________________________$ ________________________________________________________________________$

f) Motor Vehicles Fair Market Value $____________ � Motor Vehicle Loan $____________ � Equity $ Fair Market Value $____________ � Motor Vehicle Loan $____________ � Equity $

g) Other (such as - stocks, bonds, collections) ________________________________________________________________________ $ ________________________________________________________________________ $

h) TToottaall AAsssseettss (a through g) $ 11. LLiiaabbiilliittiieess (DO NOT list weekly expenses but DO list all liabilities)

Creditor Nature of Debt Date of Origin Amount Due Weekly Payment a) b) c) d) e) TToottaall AAmmoouunntt DDuuee aanndd TToottaall WWeeeekkllyy PP aa yy mm ee nn tt $$ ____________________ $$

12. NNuummbbeerr ooff YYeeaarrss yyoouu hhaavvee ppaaiidd ttoo SSoocciiaall SSeeccuurriittyy _______________ years

I certify under the penalties of perjury that my income and expenses, assets, and liabilities as stated herein are true to the best of my knowledge and belief. I have carefully read this financial statement and I certify the information is true and complete Date _________________________ Signature ____________________________________________________________

SS TTAATTEEMMEENNTT BBYY AATT TT OO RR NN EE YY I, the undersigned attorney, am admitted to practice law in the Commonwealth of Massachusetts—am admitted pro hoc vice for the purposes of this case—and am an officer of the court. As the attorney for the party on whose behalf this Financial Statement is submitted, I hereby state to the court that I have no knowledge that any of the information contained herein is false. Attorney’s Signature ______________________________________________________ Date _________________________ Address ________________________________________________________________ Tel. No. ( ) ___________________ B.B.O. # _____________________________________

350

EEXXHHIIBBIITT 1144––77 Sample custody affidavit.

351

EEXXHHIIBBIITT 1144––88 Sample claim for relief.

DOCKET NO. FA 96-123456 : SUPERIOR COURT

BRONSON, RODNEY : JUDICIAL DISTRICT OF NEW HAVEN

V. : AT NEW HAVEN

BRONSON, EVELYN : DECEMBER 8, 2000

DDEEFFEENNDDAANNTT’’SS PPRROOPPOOSSEEDD CCLLAAIIMMSS FFOORR RREELLIIEEFF

1. AA LL II MM OO NN YY ——The parties each waive any right to alimony.

2. RR EE AA LL PP RR OO PP EE RRTT YY ——The marital home will be listed for sale and the parties shall divide the net proceeds equally.

3. CCUUSSTTOODDYY——The parties shall share joint legal and physical custody of the minor children.

4. PPEENNSSIIOONN—— The parties shall each retain their respective pensions.

THE DEFENDANT, EVELYN BRONSON

BY: ___________________________________ GRACE A LUPPINO, ESQ. HER ATTORNEY 555 MAIN AVENUE NEW HAVEN, CT 06511 (203) 333-3333 JURIS NO. 160000

OO RR DD EE RR

The foregoing motion having been heard, it is hereby ORDERED:

GRANTED/DENIED THE COURT

BY: ________________________________________ JUDGE

CC EE RRTTIIFFIICCAATT II OO NN

This is to certify that a true copy of the foregoing motion was mailed, postage prepaid, on this date to all counsel and pro se parties of record on this _____ day of _____________ , 2000, as follows:

Justine F. Miller 22 Park Place New Haven, CT 06522

_____________________________________________ Grace A. Luppino, Esq. Commissioner of the Superior Court

352

EEXXHHIIBBIITT 1144––99 Sample wage execution form for facilitating alimony and child support payments by means of automatic deductions.

353

EEXXHHIIBBIITT 1144––99 Continued

354

EEXXHHIIBBIITT 1144––99 Continued

355

EEXXHHIIBBIITT 1144––99 Continued

356

EEXXHHIIBBIITT 1144––1100 Sample form for collecting statistical information about divorcing couples.

357

EEXXHHIIBBIITT 1144––1111 Sample judgment in a divorce trial.

358

EEXXHHIIBBIITT 1144––1111 Continued

359

EEXXHHIIBBIITT 1144––1111 Continued

360

EEXXHHIIBBIITT 1144––1111 Continued

361

EEXXHHIIBBIITT 1144––1111 Continued

362 CHAPTER 14

REVIEW QUESTIONS 1. Are divorce trials tried before a jury?

2. What is an uncontested hearing?

3. What is a default trial?

4. Explain the purpose of a military affidavit.

5. What is a contested hearing?

6. Explain the purpose of a judicial pretrial.

7. What type of information is exchanged be- tween the parties at a pretrial conference?

8. What is the paralegal’s role at the trial?

9. List five witnesses who may provide testi- mony at a divorce trial.

10. What is the purpose of a subpoena?

11. How does a trial notebook assist an attorney during a trial?

12. List the various documents that may need to be submitted to the court at the time of a di- vorce trial.

13. Explain the term final argument.

14. What is a judgment?

15. Why might it be necessary to obtain a tran- script of the proceedings at the close of a trial?

EXERCISES 1. Make a list of the types of documents that must

be filed with the family court in your jurisdiction on the day of trial. Obtain copies of any preprinted forms that are provided for documents on that list.

2. Contact the clerk’s office of your local family court and ask when the next divorce trial is sched- uled. See if you can arrange to observe this hearing. If you can, prepare a short paper on the matter at issue between the parties and the testimony pro- vided by both sides in support of their arguments. If the judge entered a decision after the close of tes- timony, what was the court’s ultimate resolution of the dispute?

3. Does your state family court provide alterna- tives to trials such as mediation services? If so, how are these services provided in your state? Are there any statutes or court rules that require mediation through the courts or through private agencies?

4. How are contested and uncontested matters scheduled for trial in your jurisdiction? Is there a special form that must be filed?

5. Locate the statutes that regulate divorce trials in your jurisdiction. Outline the requirements for both contested and uncontested matters.