Trial Testimony Tips in Family Law

 

^Don't be this guy. ^

As a family lawyer I have prepped countless clients and witnesses for trial.  This post is to share that advice with you all.

1. Tell the truth.  Even if you think it can hurt you, tell the truth.  If you are caught in one lie it will kill your credibility for everything else you say.  If you have something major to hide, and it would be best for you not to testify, then settle your case or hire a lawyer for the limited purpose of helping you figure out how to deal with that bad fact.
2. Keep your cool on the stand - it will enhance your credibility.  If you lose your temper, you lose credibility to the judge.  It is particularly hard to keep your composure when you're being cross-examined by an asshole.  Do it anyway.  Play a little game with yourself- the meaner your cross-examiner gets, the nicer YOU get.  This will show the judge that you are a credible witness that can't be shaken, and your cross-examiner is a bully.  A judge once told me if a witness is not nice to the cross examiner, it makes him wonder what the witness is hiding.  
3. Look at the judge when you are testifying if you're saying something really important and want to get the judge's attention.  
4. Cross examination typically consists of yes or no questions.  Answer Yes or No.  Don't expand on your answer. I can't stress this enough.  If you expand on your answer, all you are doing is helping the other side put on their case.  Even if you think an explanation is necessary, resist the urge.  You'll have an opportunity on re-direct to explain away bad facts.  Keep your answers to Yes or No if it's a Yes or No question.
5. Listen to the question asked and only answer that question.  To the same point as tip #4 above, if the question starts with "when" give a timeframe.  If it starts with "who" give a person.  Don't offer up more information than the question asks for, or you are just helping the other side present their case.
6. Keep your answers to 4 sentences tops.  Otherwise your judge will get bored.  Make your questioner guide you through your story.
7. In matters involving children, make your responses about the kids, not you.  Custody is always based on the best interest of the child, not right of the parent.  Make sure your answers always are geared toward why your requested relief is related to the best interests of the child.

Order your copy of Family Law Boot Camp for more advice on trial prep, and feel free to add your own advice in the comments!

Will Divorce Affect My Credit Score?

 

No.  According to Experian, Divorce, itself, will not affect your credit score.  However the process of splitting up joint accounts, and vindictive exes racking up credit on cards in your name could lower your credit.

The best ways to protect your credit are to try and pay off as many debts as possible, and maintain a civil relationship with your ex.  Close existing joint accounts and remove the ex as an authorized user where possible.  

Before you consider trying to be the spouse that ruins your ex's credit, keep in mind that the Courts don't take too kindly to vindictive spouses that come before them, and may award your ex a more favorable offset of the marital assets to punish you for maliciously increasing debts or refusing to pay bills.  Courts in Colorado are not required to divide marital property 50/50, and have broad discretion to punish a spouse for what they deem "economic fault."  

For tips on how anticipate how the Court will divide assets and debts, and for advice on allocating debt payments during the pendency of the divorce, order your copy of Family Law Boot Camp today.

Who Gets What in a Divorce?

The law in Colorado requires courts to divide the marital estate “equitably.”  Note this does not say “equally.”  While Courts do usually try to divide the assets and debts equally, the law grants the courts discretion to award a more favorable allocation to one spouse if the other spouse wasted marital assets in anticipation of divorce.  Put another way, if you know you are going to file for #divorce and you go to Blackhawk and blow $20,000, the Court can award more money to your ex to pay them back for what you spent. 

Courts use an asset division spreadsheet like the one in the link below to calculate an equal or equitable division of assets.  The Court enters the values of the tangible property, like houses and cars, the value of the cash and investment accounts, and the value of all marital debts to come up with a net value of the marital estate.

Here is an asset division spreadsheet for you to download for use in your case.  

In this example, column A is where you enter the name of the asset; B is where you enter the exhibit number if you are using this at trial; C is for Fair Market Value of the Asset; D is for the loan on the asset (such as a mortgage on the house or the car loan which lowers the equitable value of that asset); E is the Net Equitable value of the asset; F is the non-marital value of the asset (the amount that a spouse may have come into the marriage with in that assets); G is the Net Marital value of the asset – this is the amount the Court must divide between spouses; and columns H and I are where you can play with the allocation of the marital value to figure out what would be an overall fair allocation.  Column J is used to check yourself to ensure you allocated all the values.  All line items in Column J should be zeroed if you’ve allocated everything.

You’ll see in the example that I put in phony debts, assets and values to show you how this works.  While each asset or debt is not necessarily divided equally, the net division at the bottom of the spreadsheet comes out to be a 50/50 allocation.  In the example, I used the house to equalize the otherwise uneven division of assets.  There are countless reasons that parties do not divide every single asset 50/50.  One reason is that it is a pain to do so, and it is easier to just allocate entire assets to one or the other spouse and equalize with the largest asset.  Another reason may be that one spouse has an emotional tie to something, such as a collectible.  In this case, Spouse 1 got the entire gun collection.  Collections require valuing several pieces and often one spouse may have an affinity for the collection more than the other. 

You will also notice a non-marital value entered for each retirement fund.  This is because each spouse came into the marriage with the fund already in existence.  Only the appreciated value is marital property.  I also put in the MISC section that Spouse 1 got an inheritance.  As long as inherited money is kept separately titled it retains its non-marital classification. So this entire asset is not subject to division.

TIP:  The burden to prove something is separate property is on the party claiming this so if you it’s you, make sure you produce statements showing the value as of the date of marriage to prove the non-marital value is what you say it is.

There are many ways these assets could have been divided, so take the example as just one of countless possibilities.

Use this spreadsheet to enter your assets and debts to figure out ways the court may allocate your property, and to show the court why what you’re asking for is fair and equitable.

One thing you should consider doing is divide the retirement assets equally, and do not try to equalize these with other assets because they typically have different tax consequences (many are deferred-tax dollars).  Also, if you are listing Roth and Traditional IRAs, you might do this as well as those have different tax consequences.  You can also reduce the value of the deferred tax assets to arrive at an after-tax value. 

Pick up a copy of Family Law Boot Camp for more detail on what the Court considers in dividing assets and debts, and how to best argue for the the allocation you want.

How Much Does Divorce Cost?

 

This is a question without a simple answer because there are many variables, so I'll break them down for you in two categories:  1) costs you are almost certain to incur and 2) optional additional costs (such as hiring an attorney).

Costs You are Almost Certain to Incur

Filing fee for Petition for Dissolution of Marriage:  $230.00 

Filing fee for Response to Petition for Dissolution of Marriage:  $116.00 

Service of Process by Sheriff:  $35.00

Mediation ($75/hour, two-hour minimum requirement):  $150.00 

That's it.  #Divorce is inexpensive.  It's the fighting that costs so much.  

Here are the optional costs you might incur based on how much you and the ex engage in litigation.

Optional Additional Costs*

Attorney fees:  Variable but at least $5,000 for initial retainer and likely over $20,000 in total.

    Attorneys charge by the hour in .10-hour increments, meaning if you hire an attorney at $300/hour, a 6-minute phone call will cost you $30.  This adds up quickly depending on how much you use the attorney. Attorneys can't quote flat fees because they'd inevitably lose money.  Charging by the hour incentivizes people to settle their cases (when funds run low).  

    Attorneys charge around $300 an hour on average.  Associate attorneys (the less experienced ones at the firm) charge less than partners, usually $200 per hour.  Paralegals charge less than associates, usually about $150 per hour.  Make sure you ask for the costs of all those who will touch your case and pay attention to who is doing the bulk of the work (ensure attorneys are delegating less specialized tasks to support staff or paralegals).  Also, note that many attorneys increase their rate for their "trial fee."

    Most firms have you start with a $5,000 retainer, and it is almost certain you'll end up replenishing this before you get to mediation.  You've probably already found that if you Google "how much does divorce cost" you'll get several figures that various websites tell you are the average.  That number means nothing to you because your case is unique.  I have seen cases where clients did not spend their entire initial $5,000 retainer, and others where parties spent well over $100,000.    

    While you cannot control how much your ex will fight (thus potentially causing you to incur more costs), you can control how much you engage in the fight and how often you contact your attorney team.  

    My advice:  

1. Keep emails and calls to your attorney to a minimum.   
2. Choose your battles with the ex and accept that you cannot win on every issue.
3. Discuss your reasonably ideal budget with your attorney and gauge the attorney's reaction.  Don't be afraid to ask the attorney for their best estimate of your total costs based on what they know about your case at the beginning.
4. Look into unbundled services (limited representation), which can help keep costs lower because you utilize the attorney's services only where needed and you do much of the foot work yourself. 

Experts:   

• Child and Family Investigator:  $3,250.  This cost is capped at $2,750 plus $500 trial fee.  Some CFIs charge more than the cap by getting parties to agree in a contract to the higher fees.  If costs are a concern, find a CFI that sticks to the cap.
• Parental Responsibilities Evaluator:  $20,000.  This is an expert who, like a CFI, makes recommendations to the court regarding parenting time but is also able to conduct mental health evaluations.
• Substance Abuse Evaluator:  $5,000.  This expert determines whether one spouse abuses substances.
• Real Estate Appraiser:  $500.  You can avoid this cost if you agree to sell the house and split the proceeds 50/50, or stipulate to the Zillow valuation.
• Vocational Evaluator:.  $6,000.  This expert comes in to play when one spouse argues the other spouse is capable of earning more money.
• Business Valuation Expert:  This expert values businesses owned by a spouse.
• Private Mediator:  $7,000.  Many attorneys prefer private mediators to the court mediators, and they do tend to get cases resolved more often.  Private mediators charge $300 per hour and up, and these mediations may go all day and into the evening.  Private mediators make themselves available to continue negotiations after the mediation session in cases where parties are close to resolution, and continue to charge by the hour for their time.
• Private Process Server:  $200.  If your ex avoids service of process you may end up spending money just to track him down or stake out their home.  
• Private Judge:  $30,000.  Some parties opt to hire a private judge (who is a retired judge working privately) rather than stay with the judge in which their case was assigned.  This may be because they don't like the judge they were assigned to or they want to take the case to trial sooner.  This judge shopping is a luxury most cannot afford.  Private judges charge around $400 per hour and will want to manage the case during litigation and review documents in advance of trial so you're paying more than just a trial fee.

E-filing fees:  $500

    If you opt to e-file or hire an attorney, you will be paying a $12.00 submission fee for every document e-filed in addition to the court filing fees attached to the document type.  Attorneys are required to e-file so you do not have the option of directing them not to.  

Copies and Postage:  $1,000

    While these costs may seem nominal, they add up quickly, especially in times of trial preparation when attorneys are required to bring four exhibit notebooks to Court full of hundreds of pages of exhibits.  At $0.20 a page, this cost can sneak up on you.  You must serve the other party with every document you file with the Court, and submit disclosures to the other party, so postage can add up quickly too.

Therapy:  $5,000

    Many parties to divorce find themselves needing professional mental help to get through this process.  You may end up putting your children in therapy to help them cope with the divorce as well.

Witness fees:  $30.00.  

    When you subpoena a witness to court, you have to pay their mileage cost for the miles they must drive to and from the courthouse, and send the check with the subpoena.

This list is not all-inclusive and there could be other fees that apply to your case that are not listed here.  This is a list of the most likely fees and costs you could incur in a divorce.

It is not surprising that with all these costs, 75% of family law cases every year in Colorado are filed by self-represented parties.  Whether you go it alone or hire an attorney, be sure to order Family Law Boot Camp to help you understand the process every step of the way.  

*All costs quoted are estimates and are not guaranteed to be the cost you are quoted.

Can Divorce be Filed Online in Colorado

Yes, in Colorado, a #divorce can be filed online in some counties, but not all.   Those counties are:

Adams	Alamosa	Arapahoe	Broomfield
Chaffee	Conejos	Costilla	Custer
Douglas	El Paso	Fremont	Garfield
Grand	Jackson	Larimer	Mesa
Mineral	Moffat	Park	Pitkin
Rio Blanco	Rio Grande	Routt	Saguache
Teller	Weld

For a list of the counties in which you may e-file, visit https://www.courts.state.co.us/Administration/Unit.cfm?Unit=efilenoaty.

You can file for divorce in the county in which you or your spouse reside.  

The e-filing system is called CCE (for Colorado Courts E-filing).The fee to e-file is $12.00 in addition to the filing fees for the document you are filing.  The submission fee of $12.00 is charged every time you e-file a document.

The fee to file for divorce in Colorado is $230.00.  This does not include the $12.00 submission fee described above.  If you file a co-petition, there is just this one filing fee.  However if you are the Respondent and you were served with a Petition for Dissolution of Marriage that was already filed, you will have to pay $116.00 to file a response.  Visit this link for all filing fees for domestic relations cases.  https://www.courts.state.co.us/userfiles/file/Self_Help/FeesChart%20-%20JDF1%20(7-15%20FINAL).pdf

When you file a new divorce case you must have the Respondent personally served, meaning you have to have someone over 18 years old who is not a party to the case hand the Respondent the documents you filed.  After the Respondent has been personally served, you can serve the Respondent by mail with any subsequent filings (except for contempt or any filing that carries potential criminal penalties).  You can opt to have CCE serve the party for you but the cost is really inflated.  Compare a one-page motion that would cost you first class mail postage of $0.55 to mail.  CCE would charge $6.00 to mail the same document.  You pay extra for the convenience.  You can opt out of having CCE serve for you.  

If you wish to have a Sheriff serve your ex, contact the Sheriff's department in the county where the ex lives or works.

Visit this link to access all the documents you need to begin your case or respond to a Petition for Dissolution of Marriage.  https://www.courts.state.co.us/Forms/SubCategory.cfm?Category=Family.  If you are unable to afford an attorney, order a copy of Family Law Boot Camp to guide you through the entire process.

Integrity in the Legal Profession- What to Look For In a Lawyer.

Warren Buffet says integrity is the most important trait to hire for.  Ref:  https://www.inc.com/marcel-schwantes/first-90-days-warren-buffetts-advice-for-hiring-based-on-3-traits.html.  The same holds true when hiring a lawyer.  You want a lawyer you can trust, not only to get you a favorable result (which no lawyer can guarantee), but who will be honest with you about the direction of your case. Using Warren Buffet’s 12-question analysis, here are the things you should look for in an attorney.

1. Attorneys should tailor advice to your specific case.  Attorneys draw on their experiences, but should be learning from them, whether good or bad, so that they can tailor advice to your unique set of facts, rather than treating you like another cog in the wheel.

2. Attorneys should not be afraid to be challenged.  They should be able to respond to questions with professionalism and confidence.

3. An attorney should respect the judges, but not fear them.  An attorney should respect the law, but not be afraid to argue a different interpretation of law.  Bad court decisions must be challenged if they are to be overruled. The first attorney to challenge Plessy v. Ferguson was most likely considered a nuisance by the judge, but his efforts eventually led to Brown v. Board of Education.

4. An attorney should not “break the rules.”  Especially the ethics rules that guide our profession.  Attorneys should practice with professionalism, which means respect of others and of rules, which are designed to protect our clients.

5. An attorney should never advise you to do anything illegal or unethical. 

6. An attorney should maintain confidentiality of your conversations, but only to an extent.  What you tell an attorney is confidential, but if you express an intent to do something illegal or harmful, the attorney is permitted to report it.

7. Sometimes tension between attorneys in cases occurs.  Your attorney should handle that tension with professionalism, maturity, and class.  A war of words may only end up costing you money.

8. Your attorney should keep you updated on every aspect of your case, return calls timely, and respond to emails timely.  She should be honest with you about your prospects for success, the weaknesses in your case, and advise you on what you can do that [you have control over] to increase your chances of success in your case.  An hourly-fee attorney should send you invoices regularly so you can see what is being worked on and how your money is being spent.

9. Your attorney should be honest with you, advise you on what she believes is a fair outcome (as well as the extreme possible outcomes), explain things in terms you can understand, and answer your questions.

10. Your attorney should never be willing to lie to anyone for you.  They can be disbarred for this, and you will pay the price.  You want an attorney who is honest to the judiciary.  This does not mean that attorney will disclose your confidential communications, but do not trust an attorney who is willing to misrepresent something to the court or advises you to hide evidence.

11. Look at attorney reviews for signs of integrity, and be sure to read between the lines of bad reviews.  Bad reviews may be written anonymously by people who were never even clients (or even former opposing parties) just to harm that attorney’s reputation.

12. Read an attorney’s peer reviews as well.  Is that person respected in the legal community?  If not, this could be a sign of a lack of integrity.

For more information on what to look for in an attorney, check out Family Law Boot Camp.

Aggressive representation

We've all seen the commercials of attorneys bragging to be the Strong Arm of the Law or the Bulldog.  There are YouTube videos of corny commercials the nation over of attorneys practically chanting while wearing their war paint about how they'll fight to the death for you. Which raises the question, should you be looking for an aggressive attorney?

Maybe.

You should be looking for someone who CAN be aggressive, IF the need arises.  To that point, you should be looking for an attorney who tailors her approach to your unique situation. 

Not every case should be approached aggressively.  It may make more strategic sense to approach your case congenially, in order to make the other party look like an unreasonable bully.  Often times, opposing lawyers get along with each other, which tends to increase your chances at settling and thus saving money.

On the other hand, there are times when the other party is being SO unreasonable, an aggressive offense makes the most sense.  It may intimidate the other side into a more reasonable position, or drive up that person's attorney fees to the point they can't afford to keep fighting.

Question your attorney's approach and ensure that it makes the most sense for your set of facts.  You may dislike your ex (to put it mildly) but that doesn't mean being out for blood will work well for what your goals are.