Anatomy of Divorce: Part III

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Anatomy of Divorce: Part III

• Discovery



• Depositions



• Hearings and trials



• Motions for contempt



• Ex parte motions

Discovery

Discovery is an optional part of a divorce strategy and is usually accomplished through depositions or what are sometimes called interrogatories. Both sides can demand information from the other side, like bank records, and usually it is mandatory to comply. Aggressive lawyers may ask for an unreasonable amount of documentation. Your lawyer should protect you from invasive or unreasonable requests.

The discovery process may include interrogatories, which are a set of questions each party must answer truthfully in writing and truthfully. Interrogatories may include financial questions and questions about your past that may reflect on your ability to be a good parent. It is not uncommon for the non-BPD spouse to answer these questions faithfully, while the BPD spouse does not comply, or claims ignorance about the whereabouts of key documents. If you cannot easily produce these documents, or the requests for information create an unreasonable burden, ask your lawyer to explain the pros and cons of complying.

If your BPD spouse demands access to documents, do not feel compelled to comply until talking to your lawyer. The discovery process is there for good reason -- it formalizes the request for documentation and oversharing will often not be in your best interest. There is a surprising lack of consequence for not complying, and the courts seem to be very tolerant of a spouses inability to produce information. Your willingness to follow the rules is often not rewarded, and may in fact create new problems for you. This should be part of the strategy you discuss with your lawyer.

Depositions

A deposition is considered another type of discovery. Most divorces don’t include depositions, but they can be part of a very effective strategy for high-conflict cases, especially if the BPD spouse has made false allegations or is likely to lie under oath. Either party can file a motion to depose the other party, and if the judge approves it, both spouses may be required to answer questions under oath. If your spouse is prone to lying and is high-functioning, and it is otherwise difficult to document the abuse, depositions may be a good option.

Both lawyers may request documents in advance, and both parties can enter evidence (including emails) that forms the basis for questions asked during the deposition. During your deposition, you may be under oath for two to four hours, with breaks. A transcriptionist is usually present to transcribe the testimony into a recorded and written transcript that you can read before the trial.

If there are serious disagreements – like accusations that either party has broken the law or is unfit as a parent – these issues can be brought to light in depositions.

Keep in mind that some lawyers like depositions because it gives them a chance to see both clients under some degree of duress. This helps them gauge how you will conduct yourself as a witness, and whether you come across as credible. A lawyer who is persuaded by his client may realize during a deposition that going to trial is a gamble, and choose instead to try and settle out of court. In one sense, deposition can be like a mini-trial. In another sense, it is best to say as little as possible. If your case goes to trial, the opposing attorney will cross-examine you against your sworn deposition testimony, so it is important to explain as little as possible. Answer yes, no, I do not remember, and let your lawyer do most of the talking if your case goes before a judge.

Hearings and trials

Trial can be good or bad depending on how cooperative your BPD ex can be. A high-conflict spouse with an aggressive lawyer may try the case before a judge instead of in mediation, or, as the non-BPD parent, you may decide that your spouse will not agree to reasonable terms that you know are best for you, and if you have them, for your kids.

In many courts, mulitiple cases are scheduled to appear on the same day and time. Once the judge arrives, he or she will look at the cases and prioritize them, arranging who will go first and last. In some states, child abuse and domestic violence cases must be heard first, and often the shorter issues will be heard next. If you feel nervous, see if you can attend a few sessions to see what the room looks like and how things work. This can help calm your nerves and prepare you for how court works in the event you find yourself headed there.

It’s possible in your case that you will not testify, and that your lawyer will do all the talking. Both parties can call witnesses and submit evidence as “exhibits” that are typically presented to the other side in advance.

Motions for contempt

If one party doesn't follow the temporary or final orders, you can file a motion for contempt. In some states, there is an “order to show case” that accompanies the motion for contempt.  If a party is found in contempt, that can mean jail or a fine, but jail is rare.  Courts may issue a fine to the parent found in contempt, or may award sanctions to the parent who filed for contempt. These sanctions often only cover a portion of the legal costs, and will be determined by the judge. It is then the responsibility of the non-BPD parent to get the BPD parent to comply with the sanctions and pay the legal costs. This can unfortunately lead to additional motions for contempt, which costs more in legal fees.

Motions for contempt are often viewed more seriously post-divorce since the court now expects the parents to have moved on from any prior conflict.  However, motions for contempt can add up like parking tickets before the court starts to take the offending behaviors more seriously, either by awarding sanctions or, if non-compliance is particularly egregious, threatening the contemptuous parent with jail.

Ex parte motions

An ex parte motion is issued often when there is an emergency, often involving the kids. For example, if the temporary or final order says that one of the parents is strictly prohibited from consuming alcohol prior to or during visitation, and there is proof he or she is inebriated, an ex parte motion for emergency suspension of visitation may occur. In these situations, the order is typically granted quickly with the expectation that both parents will appear in court for a full hearing to discuss changes to the existing order.

Anatomy of Divorce: Part I

• What can I expect?



• Preparing for divorce



• Start documenting



• Filing for divorce



• Hiring a lawyer

Anatomy of Divorce: Part II

• Serving the papers



• The response



• Mediation



• Arbitration



• Temporary orders



• Final orders



• Divorce decree



• Property division

Anatomy of Divorce: Part IV

• Custody evaluation



• Psychological evaluation



• Visitation



• Rights of first refusal



• Expert or third-party witnesses



• Guardian ad litem



• Parenting coordinator



• Child advocate



• Co-parent counseling