Divorce, Judges and Court – What You Need to Know

If you are getting divorced, unless your case is a simple “uncontested divorce”, then a Judge will be assigned to your case and you will need to go to Court. You may even have to go to trial. Therefore, it is important to know what the Judge’s role is and what you need to know when you go to Court.

  1. What Does a Judge Do? Unlike a criminal case, in a divorce case, a Judge does not find you “guilty”, “innocent”, or sentence you to jail (unless they find you in contempt of court, more on that later).

    Before there is a divorce trial, typically there will be many court conferences. Although every Judge handles their court conferences differently, in general terms, at a court conference, the Judge determines the basic facts of the case. Also, before a trial, there may be temporary orders or decisions that apply while the divorce case is pending. A typical example is a temporary order of child support.

    Sometimes, a Judge will tell the attorneys their general feeling about the case. Although these are not formal rulings, your attorney will be able to know which way the Judge is leaning towards and guide you accordingly.

    If there is a trial, the Judge will hear the evidence, rule on any objections and sometimes ask the witness some of their own questions. At the end of a trial, it is extremely rare for a Judge to issue a ruling. Instead, the Judge will compare his/her notes and consider the evidence. The Judge will issue a written decision which is usually mailed to the attorneys.

    As mentioned above, a divorce case is not a criminal case. However, if you disobey a Judge’s Order or act in such a manner that causes you to be in “contempt”, then it is possible that a Judge could find you in “contempt of court” and in extreme cases, decide that you should be in contempt.

  2. Dress Appropriately. What you wear to Court will impact how a Judge sees you. If you are claiming that you do not have any money or resources, then you should not be wearing expensive jewelry or thousand-dollar suits. In contrast, if you are someone who does earn a good income, then going to Court in old pants and a ripped shirt, will make the Judge know that you are not telling the truth. Generally, you should wear “business casual” attire and not a lot of jewelry.

  3. Don’t Interrupt the Judge. When the Judge speaks, you listen. If the Judge asks you a question, then answer the question. Sounds simple enough, but, I’ve seen clients who talk over a Judge and I’ve seen clients who don’t directly answer the Judge’s question. If a Judge asks you a question, typically keep your answers short and to the point. Your attorney can always expand upon your answer.

  4. Don’t Waste the Judge’s Time. A Judge will have hundreds of cases. Do not bring frivolous issues or simple disputes to the courtroom. A Judge does not want to be bothered with something that should be worked out between divorcing couples. A good example is what to do with your personal property (furniture, TVs, computers, clothing). Most Judges do not want to be bothered with dividing up personal property. They expect the clients to be able to divide the personal property in a fairly equal manner. Of course, there are exceptions to this rule. If you have expensive jewelry, art collections, sports collections or other things of value, a Judge may have to decide how those items are divided up.

  5. Be Prepared, but, Don’t Be Like a Robot: If you are going to trial, then you need to be prepared. Your attorney will review your case with you. However, when you are a witness, you do not want to look like you have memorized your answers or look like a robot when answering your questions. Most clients are very nervous when they are on the witness stand. That is to be expected, and a Judge will understand that you are nervous. In contrast, if you look like you have memorized your answers, a Judge may hold that against you.

  6. Do Not Lie. This may be the most important rule. If a Judge catches you lying or believes that you are either lying or not telling the whole truth, this could ruin your whole case. It is much better, to tell the truth — no matter, how damaging it might be — then to lie.

  7. A Judge will be one of the most important parts of your divorce matter. Each Judge handles their divorce cases differently. David Badanes and the Badanes Law Office, P.C. has extensive experience with all the Suffolk County and Nassau County Judges. Mr. Badanes is well respected and knows that the Judges what an attorney who is honest and does not waste their time. If you are contemplating a divorce or just served divorce papers call David Badanes at 631-239-1702.

What Is Hearsay And Why Can’t I Use It In A Divorce Proceeding?

If you watched any movie or television show that has a court scene, you may have heard the objection: “hearsay”. So, what exactly is hearsay, and why can’t you use it?

Hearsay – to the lay person – a good definition would be: any type of statement, testimony or document where the person who made the statement is not there in court or the person who created the document is not there to verify that the document is true and accurate.

For attorneys, there are many legal definitions of hearsay, but, generally, it is defined as: “an out of court statement, made in court, to prove the truth of the matter asserted.”

The reason hearsay is not admissible evidence, is that it is thought to be unreliable and also because you can’t cross-exam the person who said it.

Here are two examples of why hearsay is not admissible:

Example #1:  Wife (on the witness stand): My neighbor told me that she saw my husband with another woman at a hotel and a restaurant.

This is definitely hearsay, whatever the neighbor said is definitely an “out of court statement” and it is being admitted for the “truth” of showing that the husband was with another women at a hotel and a restaurant. Without the neighbor to directly testify about her statement, the husband’s attorney could not ask her questions about what she exactly saw and when she saw it. On questioning, a good attorney may be able to reveal that the so-called “other woman” was a relative or that it was just an innocent mistake made by the neighbor. Without the ability to cross-exam the neighbor, there is no context to her statement and it can’t be challenged.

Example #2: Husband (on the witness stand):  I have my child’s report card, it shows that when my wife was taking care of him, he was absent over 50 times in one year.

The report card is hearsay. It was produced by the school and unless there is a school official there to say it is actually a true copy of the report card, there is no way to know if the report card is true or accurate. Maybe the report card is not the actual report card or it was altered. Without a school official there to state that it is a true and accurate representation of the report card, there is no way to know.

As with many legal rules, there are exceptions to the hearsay rule. Lawyers spend hours learning those exceptions in law school, so it is impossible to go over most of them. However, here is a brief summary of three of the more common exceptions:

“Statement against interest”: This is when someone makes a statement against their own interest.  For example, what if the husband tells the neighbor: “Last night I was with my girlfriend at that fancy hotel and we ate at that really expensive restaurant.” If the wife, states on the witness stand: “My neighbor told me that my husband told her that he was with his girlfriend at that fancy hotel.”  Normally, anything the neighbor said to the wife would be hearsay. But, here, because what the husband said is “against his interest”, then it most likely can be admitted as evidence. It doesn’t mean that the Judge will believe the evidence, it just means the Judge can consider the evidence.

“Matter of Record”: This is usually used when there is a document that is “official” enough to be entered into evidence, even if the person who wrote the document is not there to verify it. Almost any other court order will be admitted into evidence. Therefore, if there is another court order from a different court or different Judge, you don’t need the other court or Judge to come into court to verify that the document is true and accurate. Other official government records (tax returns) may also be admitted.

“State of Mind”: This is where you testify that because of what you heard, it made you act in a certain way.  Here is an example:

Wife (on the witness stand): My neighbor told me that she saw my husband walk out of our house five minutes before I arrived, with my friend, this is why I went to my friend’s house and started to yell at her for having an affair with my husband.

Normally, whatever the neighbor said to the wife would be hearsay. However, here it could be admitted to show why the wife was yelling at her friend. Her “state of mind” was that she was angry at what she heard, and she wants to explain why she was angry. It is important to note that although, the neighbor’s statement will come into evidence, it will not be admitted for the purpose of showing that the husband left the house with a friend. It will only be admitted to show why the wife was angry and yelling at her friend.

Like many rules of evidence, the hearsay rule dates back centuries. It has lasted the test of time and most attorneys would agree that it is a good rule.

If you are thinking of getting divorced, call Long Island divorce attorney David Badanes and the Badanes Law Office. We have the experience to help you and represent you in your divorce. You can contact the Badanes Law Office at 631-239-1702 or email at david@dbnylaw.com. We have offices in Northport, Garden City, Brooklyn and Manhattan.

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In A Divorce, Can I Take The Fifth Amendment?

The Fifth Amendment of the United States Constitution states that no person can be compelled to give evidence against himself or herself. In a criminal case, this generally means that you cannot be forced to testify. You have probably seen the Fifth Amendment used in movies or television shows.

However, does the Fifth Amendment apply to a divorce case? The answer is “yes”, BUT, if you invoke (take) the Fifth Amendment in a divorce case, it can be used against you.  This is vastly different than taking the Fifth Amendment in a criminal case.

In a criminal case, if you take the Fifth Amendment, it cannot be held against you. You have the absolute right to take the Fifth Amendment, and the Court cannot imply that you have something to hide or use it against you.

However, in a divorce case or in any civil case (any case that is not a criminal case), the Judge and, if there is a jury, can assume that your answer would have a negative effect on you.

Here is an example of how the use of the Fifth Amendment differs in a divorce case versus a criminal case:

Question: “On New Year’s Eve, did you and your wife get into an argument about your credit card debt?”

Answer: “I refuse to answer that question based on the Fifth Amendment.”

Criminal Case Effect: None. The fact that you did not answer the question, cannot be held against you. There is no implication that you and your wife got into an argument or that anything at all happened.

Divorce Case Effect: Here, the Court can assume that you and your wife did get into an argument about your credit card debt.

Therefore, in most divorce cases, it is usually not a good idea to try to invoke the Fifth Amendment. However, there are some exceptions to that general rule.

If you are testifying in a divorce case and a question comes up that may implicate you in some criminal activity, you may want to invoke your Fifth Amendment right. Some examples where this may apply could be: (i) domestic violence issues; (ii) tax return issues; and (iii) fraudulent representations. Although, the Court could take an adverse inference, you do not want to admit to any possible criminal activity. Each situation and each matter is different. You would need to consult with your attorney to determine if you should take the Fifth Amendment.

David Badanes, Esq. provides expert advice and legal services in matrimonial (divorce) law. If you need a Long Island divorce attorney, contact the Badanes Law Office today at 631-239-1702 or email David Badanes, Esq. at david@dbnylaw.com.

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