Calculating temporary alimony can be a contentious process.

In Part I of my series about alimony in Colorado (which you can read here), I discussed how alimony (officially called “maintenance”) is awarded as part of temporary orders while a divorce is pending.  Specifically, that post dealt with the formula that is presumptively applied when the parties earn a combined annual income of $75,000 or less.  In this post, I will continue with the discussion of temporary maintenance (that is, maintenance awarded before the divorce is final) for situations in which the spouses together earn more than $75,000 per year.

When the husband and wife’s combined annual income is greater than $75,000 per year, there is no presumptive formula or guideline for the court to apply.  As such, the amount to be awarded is determined on a case-by-case basis.  Each case is different, and different judges will calculate temporary alimony differently. 

Step 1.  Is a spouse eligible for temporary maintenance? The first thing that the court must determine is whether the spouse seeking alimony is eligible to receive it.  The court must find that the seeking spouse:

(a)    Lacks sufficient property, including marital property apportioned to him or her, to provide for his or her reasonable needs; and
(b)    Is unable to support himself or herself through appropriate employment or is the custodian of a child whose condition or circumstances make it appropriate that the custodian not be required to seek employment outside the home.

“Reasonable needs” and “appropriate employment” are considered in light of the expectations that the spouses have developed during the marriage.  “Reasonable needs” means more than bare essentials, but considers the spouses’ lifestyle during the marriage.  “Appropriate employments” means employment suited to the individual.  Not just any job, but a job suited to the person.

Step Two. Determining the Amount of Temporary Maintenance. Once the court determines that a spouse lacks sufficient property to support himself or herself, and that he or she is unable to support himself or herself by suitable employment, the court will go on to determine how much support should be paid to the other spouse.  This calculation is very subjective.  The court will consider “all relevant factors,” including six factors listed in the statute:

(a)    The financial resources of the party seeking maintenance, including marital property apportioned to such party, and the party’s ability to meet his or her needs independently, including the extent to which a provision for support of a child living with the party includes a sum for that party;

(b)    The time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment and that party’s future earning capacity;

(c)    The standard of living established during the marriage;

(d)    The duration of the marriage;

(e)     The age and the physical and emotional condition of the spouse seeking maintenance; and

(f)    The ability of the spouse from whom maintenance is sought to meet his or her needs while meeting those of the spouse seeking maintenance.

As you can see, these factors are broadly defined, and judges have wide discretion to determine the amount of temporary alimony.  Therefore, it is important that you and your lawyer review all financial documents carefully and fully prepare for the temporary orders hearing.

This article is intended to serve as a very brief overview of the temporary alimony process.  You should consult with an attorney to find out how the law will apply to the facts of your case.  Call the Law Office of Kirk Garner today for your free thirty-minute consultation.

Resolve to make each school year better than the last.

It is that time of year again: teachers are decorating their classrooms, parents are shopping for school supplies, and students are enjoying the last few days of summer vacation.  The new school year is about to start.  What are you going to do to make this a great year?

Back-to-school season is even more stressful when your child shares two homes.  Your child’s education is tough enough already–meeting teachers, tracking homework, signing and filling out permission forms, keeping track of extracurricular activities–without having to deal with the extra chores involved in split custody.  Here are a few tips to get your child’s school year off to a good start–

1.  Keep a positive attitude. Your child may be reluctant for the summer to end and for the back-and-forth of regular visitation to resume.  When you keep a positive attitude, it makes it easier for your child to make the adjustment.  Your child will feed off of your emotions.  Don’t let them sense that you are uneasy about your ex-spouse’s visits.  Instead, help your child to look forward to spending time with their other parent.

2.  Don’t let your child hear you talk bad about the other parent. I get it: you and your ex-spouse don’t get along.  There are hard feelings and bitterness.  It is so easy to make snide comments about the other parent.  But don’t.  At least not within the hearing of your child.  Bite your tongue.  If you put the other parent down in front of your child, your child will resent you instead of the other parent.

3.  Don’t make your child be the messenger. If you have information that the other parent needs to know, don’t make your child deliver the message.  Visitation exchanges are hard enough without putting pressure on your child to remember and convey information to their other parent.  It doesn’t matter if the information is trivial or important:  if the other parent needs to know, then you need to communicate directly with the other parent.  If you aren’t on speaking terms, then send an email.  Or write a note, put it in an envelope, and hand it to the other parent during the visitation exchange.

4.  Be involved. Get a copy of your child’s school and extracurricular activity calendar.  Attend programs, open houses, games, and concerts.  Go meet your child’s teacher.  Sign up for the school’s internet portal and check your child’s attendance, grades, and homework.  Help with fundraising activities.  Go to school and eat lunch with your child.  These are great ways to show your child you care, even though the two of you may not be able to live in the same house all the time.

5.  Make an effort to get along with the other parent. Let bygones be bygones.  Bury the hatchet.  Turn over a new leaf.  Be respectful and courteous of the other parent.  When your ex-spouse has a scheduling conflict, needs to change weekends or exchange times, be gracious!  This is not for the other parent’s benefit, but your own and your child’s.  When you can communicate and accommodate with the parent, your stress levels will go down, and your child will feel more comfortable in an unnatural situation.  Do it for you!

This year does not have to be just like last year.  Your child is a year older, and has matured more than you realize.  Make his or her year better by following these tips for a great school year.  You won’t regret it.

The judge weighs the witness's credibility.

[The following article was originally published on July 22, 2011, and was the most viewed post that month.]

It can be a scary and intimidating experience to testify in court. Most people don’t have to testify in court very often. It is okay to be nervous. Most people are nervous when they testify.

To some extent, testifying in court is uncomfortable because it is unnatural: Witnesses can’t just come into the courtroom, talk directly to the judge or jury, and say whatever they want. Rather, they have to answer questions posed by a lawyer, while the judge and jury listen to the exchange.

If you are being called as a witness it is either because you are a party in the case or one of the attorneys believes you have important information that the judge or jury needs to consider in making a decision. Whenever I am preparing a witness to testify, I give them the following instructions:

1. Tell the truth, the whole truth, and nothing but the truth. It is very important that you tell the truth, to the best of your ability.

2. Listen to the Question. Make sure you understand the question. If you don’t understand the question, or if the question is vague, ask for clarification. Without being difficult, you may ask, “If you’re asking my ‘X,’ then my answer is ‘Y.’”

3. Answer the Question. Don’t answer the question you wish the lawyer had asked you, answer the question that was asked. Answer only the question asked, without adding information or making commentary.

4. If the question calls for a ‘yes’ or ‘no’ answer, then answer ‘yes’ or ‘no.’

5. On the rare occasion when you can’t answer ‘yes’ or ‘no’ then say so.

6. Even when you are asked a ‘yes’ or ‘no’ question, it may be more clear for you to answer, ‘that is correct’ or ‘that is not correct.’ Lawyers don’t always frame questions precisely. For example, if you are asked, “You did not go to work on Monday, isn’t that true?” You answer, “No.” Are you testifying, “No, I did not go to work,” or is it, “No, it is not true that I did not go to work?” If you answer, “That is correct,” then everybody will understand what you mean.

7. Don’t argue. The lawyer asking you questions may be rude or insulting. She may insinuate things that upset you. Nevertheless, do not become argumentative. This is not your turn to ask questions. This is not time to have a conversation with the lawyer or anybody else.

8. Don’t get smart. When you are on the witness stand, it is not time to crack jokes or be witty. This is not the time to hurl insult or make snide comments. The judge or jury is watching your demeanor and body language, and they will judge your credibility–whether they think you are telling the truth. It is common in trials for two witnesses to give conflicting testimony: the judge or jury must decide whom to believe. If you make inappropriate comments, your testimony may be disregarded.

9. Don’t cop an attitude when the other lawyer is asking questions. Give your spouse’s attorney (or the other side’s attorney) the same respect that you showed when your own attorney was asking questions.

10. Don’t get defensive. Don’t assume the questioner is trying to trap you. Don’t infer a bad motive. The lawyer asking you questions may or may not be trying to imply something by the manner of the questions being asked. Your job is not to be defensive, it is to answer the question.

11. Don’t look for clues or an answer from the lawyer or the audience. Only one witness may testify at a time. When you are on the witness stand, you are the only person who may answer the question. Don’t look to your spouse or anyone in the audience to help you remember something.

12. If you don’t remember, say so. ‘I don’t recall’ is always the right answer if you genuinely don’t recall. If you claim you don’t recall something you should be able to remember, it may appear you are lying.

13. Don’t speculate or guess. Again, if you don’t remember, don’t try to recreate your memory. Don’t be talked into a false memory. If you didn’t see something or didn’t hear it, if you could have personal knowledge of something, then say so.

14. Your own lawyer (or in most cases the lawyer who called you to testify if you are not one of the parties) generally must ask you open-ended questions: Who? What? Why? When? How? The fact that the question is open-ended does not give you the right to go on and on with your testimony. Give a concise answer if possible. It is easier for the lawyer to ask another question if she wants more information than it is for her to stop you when you are giving too much information. Just make sure your answer is not misleading.

15. The other side’s lawyer, or the lawyer who did not call you to testify if you are not a party, may generally ask close-ended questions that call for a ‘yes’ or ‘no’ answer. This is called ‘leading the witness’ because the lawyer is stating the facts and merely asking the witness to affirm or deny those facts. “Isn’t it true that ‘X’?” “It was cloudy that day, wasn’t it?” You may feel that your ‘yes’ or ‘no’ answer is misleading. You may feel the need to explain yourself. This is not the time to do that. If you try to explain your answers, the lawyer asking questions may object and ask that you be directed to simply answer the question. If your attorney feels it would be helpful for you to explain your answers, he may ask you when it is his time to do so. Until then, answer the question you have been asked.

16. During your testimony, a lawyer might object. Something like, “Objection Your Honor, calls for speculation.” When a lawyer makes an objection, stop talking. Do not answer the question until you are told to do so. Generally speaking, if the judge sustains the objection, you will not be allowed to answer the question. If the judge overrules the objection, you will be allowed to answer. In any case, the best thing you can do is sit quietly until you are told to answer the question or the lawyer asks you another question.

17. Sometimes the judge will address you directly. She may ask you are question or give you an instruction. Listen carefully to what the judge is saying and answer the question or follow the instruction. Judges can get quite upset when witnesses refuse to follow their instructions. The judge has the power to hold you in contempt, so it is never wise to make the judge angry.

18. Don’t ask the judge if you have to answer the question. You should assume you have to answer the question unless someone says you don’t have to answer the question. There is an important exception to this rule: You do not have to answer a question that would tend to incriminate you. If you are being asked about something and your answer could be used to convict you of a crime, you may invoke your right against self-incrimination. If you are not being asked about something that could incriminate you, you will have to answer, even if the answer is embarrassing or personal.

19. Don’t talk over the lawyer asking you questions or anybody else. Wait for the lawyer to completely finish the question before you answer. Your testimony is most likely being recorded by a court reporter or a tape recorder. It is very difficult for a court reporter to accurately record what everyone is saying when more than one person is talking at a time.

20. Answer with words. That is, do not nod or shake your head: the tape recorder cannot hear your answer. Do not answer with ‘uh-huh’ or ‘nuh-uh,’ because it is very difficult to tell the difference between those two answer when your testimony is written down.

Following these guidelines will help you to effectively testify in court.

It is more likely for your divorce to be uncontested when you know your rights.

When a prospective client calls to discuss a divorce, one of the first questions I ask is whether the case is contested or uncontested.  This is especially true when people want to know how much I charge for divorce.  Uncontested divorces are much cheaper because there are no issues to be decided by a judge or mediator.  Most people hope their divorce will be uncontested, but in reality there are very few truly uncontested divorces.

The Uncontested Divorce. An uncontested divorce is one in which both spouses want the divorce.  They have discussed the issues: how the property and debts will be divided, whether maintenance will be paid and how much, where the children will live, how much child support will be paid, how much parenting time the non-custodial parent will have with the children.  Whatever the issues the soon-to-be ex-spouses face, they have discussed them and have reached an agreement.  It is very helpful for the agreement to be in writing, to prevent miscommunication and misunderstanding.  Uncontested divorces are rare because if the spouses could communicate and reach consensus, the chances are they wouldn’t be getting a divorce.

The Contested Divorce. By contrast, a contested divorce is one in which there is not an agreement on every issue in the divorce.  There are varying degrees of contested divorce.  Couples may be able to agree who will get the house, but they can’t agree where the children will reside.  Sometimes the opposite is true.  In some cases, the parties cannot agree to anything.

Assume the Case is Contested Until It is Not.  Unless I know the spouses have an agreement, it is safest for me to assume that the case will be contested.  I will take measures to safeguard my clients rights and property until an agreement is assured.  I will prepare to present my clients case in court.  By preparing for trial, you actually make it more likely that you can reach an agreement in court.  When you fail to prepare for trial, you weaken you bargaining position and risk an unfavorable result.

Know Your Rights. When discussing the subject of divorce with your spouse, it is important to know your legal rights.  You need to know what you are entitled to so that you can make a fair bargain.  Take advantage of my free thirty-minute consultations for divorce; learn what your rights are; learn what to expect of the process.  Then you can negotiate with your spouse with confidence and you will be more likely to reach an agreement that is in your best interest.  Call me today.

Temporary spousal maintenance is designed to equalize the finances until the divorce is final.

Alimony is a payment of money from one spouse to another for the purpose of financial support or equalization of incomes. In Colorado, alimony is technically called “spousal maintenance.” There are two kinds of spousal maintenance: temporary and permanent. Temporary maintenance is the payment of money from one spouse to the other before the marriage has been dissolved (i.e., before the divorce is final). Permanent maintenance–what most people think of when they hear the term “alimony”–is the payment of money from one former spouse to the other after divorce.

In this article, I will discuss temporary maintenance when the spouses earn a combined annual income of $75,000 or less. In future articles, I will discuss 1) temporary maintenance when combined annual income exceeds $75,000; 2) permanent maintenance; and 3) other aspect of alimony, including modification, termination, and tax treatment.

Historically, the calculation of alimony has been very subjective. Based upon the same facts and income, different judges will regularly calculate and award different amounts of alimony. This creates a lack of certainty and predictability in the courts, and makes it hard for divorcing couples to plan for the future. To make the award of temporary maintenance more uniform, the Colorado legislature developed a guideline for couples whose combined annual income does not exceed $75,000. In these situation, it is a rebuttable presumption that for temporary maintenance (again, alimony paid before the divorce is final), the spouse with the higher income should pay an amount equal to forty percent of his or her income, minus fifty percent of the earnings of the spouse with the lower income.

Example #1. Let’s say that Bob earns an average of $4,000 per month, and Emily earns $2,000 per month. Forty percent of Bob’s income is $1,600, minus fifty percent of Emily’s income, which is $1,000, equal $600. Until the divorce is final, it is presumed that Bob should pay to Emily $600 per month.

Note first of all that this does not entirely equalize the spouses’ income: Bob is left with $3,400 per month, and Emily has $2,600. Secondly, while this formula adjusts income, it does not affect the payment of debts and expenses: the judge will still have to apportion which spouse will pay which monthly expenses. In many cases, the amount of expenses a party has to pay has a greater affect on their discretionary income than the amount of temporary maintenance they have to pay, or that they receive.

Example #2. Paul earn $1,000 per month, Lois earns $5,000. Forty percent of Lois’ income is $2,000, minus fifty percent of Paul’s income, which is $500, equals $1,500.  The presumptive temporary maintenance would have Lois paying Paul $1,500 per month.

Example #3. Sam earns $2,500 per month, Alice earns $2,000. Using the temporary maintenance formula, neither party would have to pay temporary alimony. (Forty percent of 2,500 is 1,000, fifty perent of 2,000 is 1,000. 1,000 – 1,000 = 0.)

It is important to keep in mind that this temporary maintenance formula (for combined income which does not exceed $75,000) creates a rebuttable presumption in favor of the calculated amount. That means that either party may seek a different amount of temporary alimony if they can show that the formula is somehow unfair. If you are able to persuade the Court, then the amount of temporary maintenance may be either higher or lower than the result of the formula.

In the next article, I will discuss how the courts calculate temporary maintenance when the parties have a combined annual income of more than $75,000. In future articles, I will discuss permanent maintenance and other aspects of Colorado’s alimony laws.

As you can see from this article, the law of alimony in Colorado is complicated and subjective. Contact the Law Office of Kirk Garner today to discuss whether you could be entitled to alimony; or find out how much you might have to pay your spouse.

Divorce is a difficult journey. Have a plan for life after divorce.

Divorce is a difficult journey–don’t let anyone tell you differently.  It doesn’t matter whether the divorce is “uncontested” or “simple;”  it doesn’t matter how good your lawyer is; it doesn’t matter how free from blame from the breakup of the marriage you perceive yourself to be–divorce is always going to be difficult.  Whether you were the spouse who sought the divorce or not.

Sometimes along the journey of divorce, we get caught up in various battles of the day and we lose focus on the ultimate goal. Sometimes it seems the most important thing is the process of ending the marriage:  filing for divorce, gathering documents, mediation, preparing for hearings and trial, and getting it over with!  At other times, the most important thing is getting out of the painful relationship and away from your spouse as quickly as possible.  Others may seek revenge by using the system to punish their spouse for hurtful or abusive behaviors.  The most important thing to focus on, however, is the ultimate goal, the finish line:  life after divorce.

Whether you wanted the divorce or not, whether you feel you have been wronged by your spouse or not, no matter how complex the process may seem, your main focus needs to be your life after divorce.

1.  Make a plan.  Early on in the divorce process–even before separation, if possible–you need to develop a plan of how you are going to live after divorce.  Visualize yourself as single again.

Where will you live? Can you afford to live in the same home you share with your spouse?  If you need to move, what kind of home do you need?  A house?  An apartment?  Will you need to rent for a while or will you be able to buy a home right away?

How will you support yourself financially?  If you are not employed, what kind of job will you seek?  How much income will you need?  Will your spouse be required to pay you child support or alimony to offset your expenses, or will you be required to pay your spouse?  Will your current income, plus or minus child support or alimony, be enough to support you in the lifestyle to which you have become accustomed?

If you have children, how will they been cared for?  Do you foresee the children living with you most of the time, living with the other parent, or do you anticipate sharing custody and parenting time?  If you work, how will the children get to and from school?  Will your work allow you time off to take the children to the doctor?  Will the children need a babysitter?  Are there any family members or friends nearby who would be willing and able to watch the children?  Keep in mind that being a single parenting is usually more challenging than being a married parent.

2.  Be realistic.  Life after divorce–no matter how attractive it seems when you are stuck in an unhappy marriage–will not be a cake walk.  Remove your rose-colored glasses.  Be realistic about your situation, your capabilities and limitations.  Discuss your plans with friends, relatives, and your lawyer.  Seek honest feedback from those you trust.  Do your friends think your goals and plans are achievable and realistic?

Your plan will be dependent on the law as applied to the facts of your case.  In order to formulate a plan, you will need to know how the courts would likely rule on the facts of your case.  Thus, it is important to seek the advice of an experienced attorney early on.

3.  Be flexible.  No matter how good your plan is, it must be flexible.  You must be able to adapt to unforeseeable situations.  If your plan includes keeping the house and having full custody of the children, how will you adapt if the judge awards the home to your spouse, or if you have to share custody?  What if your spouse’s child support is higher than you anticipated?  What if you lose your job? What if it turns out your expenses are more than you anticipated?

If you are inflexible, then you will perceive any setback–whether great or small–as a major defeat.  If your plan is rigid, you will never be happy with the result of the divorce, even if you are awarded 95% of what you set out to achieve.

Remember the goal: a happy life after divorce.  Make a plan for the future:  be as detailed as possible.  Make sure your vision of the future is realistic and achievable.  Always be flexible because your plans will need to change as your situation changes.

If you need help formulating your plan for life after divorce, call me.  Set up your free thirty-minute consultation today.

In practical terms, if the breadwinner leaves, the first risk faced is lack of immediate access to funds. Even if you have a joint bank account, your spouse might decide to open a new one in which to deposit paychecks. Joint stock or savings accounts may require joint approval for withdrawals. This could leave stay-at-home parents hostage for money until they are able to secure a temporary order of support as well as funds with which to defend themselves. For that, they’ll undoubtedly need to hire an attorney and pay a retainer, unless the lawyer is willing to wait.

Indeed, the non-working spouse is at the greatest risk when the divorce was not anticipated.  Unfortunately, most states have adopted no-fault divorce grounds, permitting one spouse to the union to seek divorce unilaterally, regardless of the other spouse’s wishes.  In Colorado, the cause of the breakup of the marriage is not admissible in the divorce.  Courts will not consider which spouse is at fault when weighing how to divide property “equitably.”  The benefits the innocent spouse expected to receive from the continuation of the marriage are not deemed relevant, even when it comes to the award of spousal maintenance.  Willett continues,

The financial risk stay-at-home parents face when it comes to alimony is even more troubling. When no-fault was instituted, permanent alimony awarded to spouses who had given up their careers to become stay-at-home parents began to fall out of favor, permanent alimony being deemed incompatible with the clean break idea behind no-fault.

Read the entire article.

For the time being, Colorado does make provision for spousal maintenance, otherwise known as alimony.  If you are an innocent spouse or stay-at-home parent, call the Law Office of Kirk Garner to set up a consultation to discuss your eligibility to receive alimony.

How will our property be divided upon divorce?

When parties get divorced, all property acquired during the marriage must be divided between them.  Property division is one of the most important issues in a marriage dissolution. There are all types of property that have to be distributed, including real estate, automobiles, bank accounts, stocks, bonds, retirement accounts, employment benefits, furniture, recreational vehicles, and personal effects.

Property division is a three step process:

1.  Setting Aside Separate Property.  The first thing that the parties or the court must do is to set aside each parties’ separate property.  Generally speaking, separate property consists of all property owned by a person before they are married, together with property they received during the marriage by gift or inheritance.  Any property exchanged for separate property is also separate property, provided that the exchange can be traced.  Any property received after a decree of separation is separate property.  The characterization of property as separate or marital is very important because the court cannot award one spouses’ separate property to the other spouse.  Some exceptions apply, so if you have any questions, you should consult with an attorney.

2.  Valuation.  Once the separate property is set aside, the next step is to determine the value of the remaining marital property.

Property is valued as of the date of divorce or the date of the hearing to divide the property, whichever occurs first.  It is easy to determine the value of some items of property.  For instance, we can easily determine the value of shares of stock by the stock exchange price on the date of divorce.  The value of other items of property is much more subjective.  It may be necessary to obtain a formal opinion of value from a professional appraiser.  Different people may have widely different views on the value of property.  In one divorce I handled, the wife’s expert valued the husband’s business at two million dollars, while the husband’s expert valued it at zero.  Ultimately, the judge will decide how much the property is worth.  Each party must be prepared to assert what they believe the property is worth, and to prove that value with appropriate experts and sources.

3.  Equitable Division.  Once the separate property has been set aside and the marital property has been valued, it is time to distribute the marital property between the parties.  Marital property does not have to be divided equally.  Rather, the court will make an equitable division of the property, as it deems is just consider all facts and circumstances, including several facts set forth in the law.  The court has wide discretion to determine what is fair in each case.

It is technically incorrect to say “I am entitled to half of ‘X’.”  You are entitled to a fair portion of ‘X.’  That could be exactly one-half of ‘X,’ it could be more than half, or it could be less than half.  This is why it is important for you to be prepared to persuade the judge why it is fair for you to receive the portion of property you are seeking.

Property division is both simple and complex.  The general rules are simple.  The application of the facts and exceptions to the rules is complex.  It is important to have the right attorney advise and advocate on your behalf so that you can truly receive a fair portion of the marital property.  Call Kirk Garner today for a free consultation.

The judge weighs the witness's credibility.

It can be a scary and intimidating experience to testify in court.  Most people don’t have to testify in court very often.  It is okay to be nervous.  Most people are nervous when they testify.

To some extent, testifying in court is uncomfortable because it is unnatural:  Witnesses can’t just come into the courtroom, talk directly to the judge or jury, and say whatever they want.  Rather, they have to answer questions posed by a lawyer, while the judge and jury listen to the exchange.

If you are being called as a witness it is either because you are a party in the case or one of the attorneys believes you have important information that the judge or jury needs to consider in making a decision.  Whenever I am preparing a witness to testify, I give them the following instructions:

1.  Tell the truth, the whole truth, and nothing but the truth.  It is very important that you tell the truth, to the best of your ability.

2.  Listen to the Question.  Make sure you understand the question.  If you don’t understand the question, or if the question is vague, ask for clarification.  Without being difficult, you may ask, “If you’re asking my ‘X,’ then my answer is ‘Y.’”

3.  Answer the Question.  Don’t answer the question you wish the lawyer had asked you, answer the question that was asked.  Answer only the question asked, without adding information or making commentary.

4.  If the question calls for a ‘yes’ or ‘no’ answer, then answer ‘yes’ or ‘no.’

5.  On the rare occasion when you can’t answer ‘yes’ or ‘no’ then say so.

6.  Even when you are asked a ‘yes’ or ‘no’ question, it may be more clear for you to answer, ‘that is correct’ or ‘that is not correct.’  Lawyers don’t always frame questions precisely.  For example, if you are asked, “You did not go to work on Monday, isn’t that true?”  You answer, “No.”  Are you testifying, “No, I did not go to work,” or is it, “No, it is not true that I did not go to work?”  If you answer, “That is correct,” then everybody will understand what you mean.

7.  Don’t argue.  The lawyer asking you questions may be rude or insulting.  She may insinuate things that upset you.  Nevertheless, do not become argumentative.  This is not your turn to ask questions.  This is not time to have a conversation with the lawyer or anybody else.

8.  Don’t get smart.  When you are on the witness stand, it is not time to crack jokes or be witty.  This is not the time to hurl insult or make snide comments.  The judge or jury is watching your demeanor and body language, and they will judge your credibility–whether they think you are telling the truth.  It is common in trials for two witnesses to give conflicting testimony: the judge or jury must decide whom to believe.  If you make inappropriate comments, your testimony may be disregarded.

9.  Don’t cop an attitude when the other lawyer is asking questions.  Give your spouse’s attorney (or the other side’s attorney) the same respect that you showed when your own attorney was asking questions.

10.  Don’t get defensive.  Don’t assume the questioner is trying to trap you.  Don’t infer a bad motive.  The lawyer asking you questions may or may not be trying to imply something by the manner of the questions being asked.  Your job is not to be defensive, it is to answer the question.

11.  Don’t look for clues or an answer from the lawyer or the audience.  Only one witness may testify at a time.  When you are on the witness stand, you are the only person who may answer the question.  Don’t look to your spouse or anyone in the audience to help you remember something.

12.  If you don’t remember, say so.  ‘I don’t recall’ is always the right answer if you genuinely don’t recall.  If you claim you don’t recall something you should be able to remember, it may appear you are lying.

13.  Don’t speculate or guess.  Again, if you don’t remember, don’t try to recreate your memory.  Don’t be talked into a false memory.  If you didn’t see something or didn’t hear it, if you could have personal knowledge of something, then say so.

14.  Your own lawyer (or in most cases the lawyer who called you to testify if you are not one of the parties) generally must ask you open-ended questions:  Who?  What?  Why?  When?  How?  The fact that the question is open-ended does not give you the right to go on and on with your testimony.  Give a concise answer if possible.  It is easier for the lawyer to ask another question if she wants more information than it is for her to stop you when you are giving too much information.  Just make sure your answer is not misleading.

15.  The other side’s lawyer, or the lawyer who did not call you to testify if you are not a party, may generally ask close-ended questions that call for a ‘yes’ or ‘no’ answer.  This is called ‘leading the witness’ because the lawyer is stating the facts and merely asking the witness to affirm or deny those facts.  “Isn’t it true that ‘X’?”  “It was cloudy that day, wasn’t it?”  You may feel that your ‘yes’ or ‘no’ answer is misleading.  You may feel the need to explain yourself.  This is not the time to do that.  If you try to explain your answers, the lawyer asking questions may object and ask that you be directed to simply answer the question.  If your attorney feels it would be helpful for you to explain your answers, he may ask you when it is his time to do so.  Until then, answer the question you have been asked.

16.  During your testimony, a lawyer might object.  Something like, “Objection Your Honor, calls for speculation.”  When a lawyer makes an objection, stop talking.  Do not answer the question until you are told to do so.  Generally speaking, if the judge sustains the objection, you will not be allowed to answer the question.  If the judge overrules the objection, you will be allowed to answer.  In any case, the best thing you can do is sit quietly until you are told to answer the question or the lawyer asks you another question.

17.  Sometimes the judge will address you directly.  She may ask you are question or give you an instruction.  Listen carefully to what the judge is saying and answer the question or follow the instruction.  Judges can get quite upset when witnesses refuse to follow their instructions.  The judge has the power to hold you in contempt, so it is never wise to make the judge angry.

18.  Don’t ask the judge if you have to answer the question.  You should assume you have to answer the question unless someone says you don’t have to answer the question.  There is an important exception to this rule:  You do not have to answer a question that would tend to incriminate you.  If you are being asked about something and your answer could be used to convict you of a crime, you may invoke your right against self-incrimination.  If you are not being asked about something that could incriminate you, you will have to answer, even if the answer is embarrassing or personal.

19.  Don’t talk over the lawyer asking you questions or anybody else.  Wait for the lawyer to completely finish the question before you answer.  Your testimony is most likely being recorded by a court reporter or a tape recorder.  It is very difficult for a court reporter to accurately record what everyone is saying when more than one person is talking at a time.

20.  Answer with words.  That is, do not nod or shake your head: the tape recorder cannot hear your answer.  Do not answer with ‘uh-huh’ or ‘nuh-uh,’ because it is very difficult to tell the difference between those two answer when your testimony is written down.

Following these guidelines will help you to effectively testify in court.

It is important to maintain contact with your children during deployment.

Active military duty is hard on families.  Too often, marriages are a casualty of war.  When our servicemen are deployed for long periods of time, it is not uncommon for husbands and wives to grow apart.  Even when marriages survive, relationships with children can suffer.

If you and your spouse are having marital difficulties, and you anticipate separation or divorce, don’t forget the children.  Your efforts to maintain contact with your child during duty and deployment will directly affect the amount of parenting time you are granted when the divorce is final.  It could even determine whether the other parent is permitted to move out of state with your child.  Here are a few suggestions:

1.  Keep the lines of communication open.   Don’t let communication problems with the other parent keep you from speaking with your child.  Maintain telephone contact.  Utilize video-conferencing such as Skype so that you can see your child and your child can see you–it helps communication tremendously when you can see the other person and read body language.

2.  Don’t forget to write.  Send your children letters and emails often.  If your child is old enough to have a facebook or similar account, check in regularly.  Text them.  Show them you are interested in what they are doing.  Ask them about grades, friends, and activities.

3.  Send cards and gifts.  Make sure to remember your child’s birthday, as well as holidays and special occasions.  If you won’t be home for Christmas, ship gifts home, or buy them in advance and leave them with a friend or family member.  When you return home, bring the children a treat or souvenir from your trip.

4.  Exercise your visitation.  When you are in the country and stationed near your child, don’t neglect your visitation.  See you children every chance you get.  If you have court-ordered parenting time, ask for extra time.  Don’t let the other parent unfairly limit contact with your child.  For example, if you have already separated and you are in a new relationship, and the other parent says you can’t see the child when your boyfriend or girlfriend is around, then send the boyfriend or girlfriend away for the weekend and spend time with your kids!  Show the other parent and the judge that your children are more important to you than your new love.

Helpful links–

SurvivingDeployment.com

DeploymentKids.com

Maintaining a Close Bond During Deployment