Trials and hearings, in New York divorces, can be on the topics of grounds, custody, support and equitable distribution. While the majority of cases settle prior to trial, many trials are still necessary on some or all of the issues. Although other hearings are possible, such as on contempt or modifications of orders, the aforementioned are the most common. All of the issues may be heard together or handled at different times. For example, if grounds are disputed, a court may schedule a grounds trial right away since if grounds do not exist, then the rest of the divorce is a moot point as it cannot proceed.
Grounds are rarely an issue nowadays since the passage of the No-Fault law in 2010 which merely requires one party to the case to be able to swear that the marriage has been irretrievably broken for at least six months. However, if a party insists on fault based grounds that are disputed, a trial might be necessary on those grounds if disputed. As a New York City and Long Island Divorce Lawyer, I found myself in a grounds trial soon after the passage of the No-Fault law since the other side insisted on pursuing fault based grounds. Another possible grounds trial could be on the issue if a party substantially complied with a separation agreement when divorces are sought based on the grounds that the parties have lived apart pursuant to a legal separation for at least one year.
So, what evidence is admissible at a divorce trial? For the most part, these rules of evidence apply at most civil trials whether on a divorce, family court matter or otherwise. In general, all relevant evidence is admissible, unless it should be excluded based on some rule of evidence. Irrelevant evidence should not be admitted at trial if objected to by the opposing side or the trier of fact (judge). Evidence that has a reasonable tendency to show or not show the existence of a fact necessary to the decision on a matter is relevant. If a bit of evidence seems to be from a non-reliable source, usually it would still be deemed admissible, however it might not carry a lot of weight. What value to give the evidence is for the court to decide. However, even relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, undue delay or waste of time.
Once the divorce trial begins, after any opening statements, usually the Plaintiff will proceed with their case through the testimony of witnesses. When an attorney questions their own client or witnesses on what is called direct examination, leading questions are not permissible on direct examination, although leading questions are permitted on cross-examination. A leading question is a question that is designed so that it transparently reveals the answer sought. For example, “you are the wife of the Defendant, correct?” Leading questions are sometimes allowed on direct examination to orient a person to the time period or the item about which testimony is sought. If a witness’ memory is exhausted or the witness is a young child or mentally impaired then leading questions can be allowed. Witnesses present direct testimony are cross-examined then can be redirected by their attorneys about matters brought out on cross. Any re-cross may be done pertinent to the re-direct.
If a witness’s memory fails them, things may be given or shown to them to refresh their recollection. Most commonly, a writing or notes are used, but it could be something as quirky as “Would smelling this orange refresh your recollection?” (It’s an example I remember from law school, back in the day!) Once a witness’s recollection is refreshed they may then give the answer. The witness is not supposed to read directly from the writing as the writing was not admitted into evidence in this example, it was merely used to refresh the witnesses memory. Then the witness is theoretically testifying from memory as their recollection is then refreshed.
The rules of evidence require that, out of court statements, offered for the truth of the matter asserted is hearsay. But, there are hearsay exceptions. Hearsay that falls under one of the exceptions can be admitted. Probably the most common hearsay exception is a party admission. In practice, usually courts tend to allow statements between parties or simply statements made by a party to the case even if it is not an “admission” although it could be disallowed as hearsay if it is not an admission. If the statement is not being offered for the truth but rather to simply prove that a statement was made it can be admissible. Some, but not all, of the other common hearsay exceptions are: properly certified business records; certified government records; dying declarations; and excited utterances.
Objections to improper questions, improper answer and improper evidence need to be made in order to exclude evidence and preserve the trial record. When to object and when not to object can be art form. Too many objections can be annoying to a judge. Not making the right objections can result in a deficient appellate record. Unpreserved errors usually can not be argued on appeal. The rules of evidence are tricky. Even lawyers can take years of trial practice before gaining proficiency.
Sometimes, at the close of the Plaintiff’s case in a divorce or the Petitioner in a family court trial the other side will make motions to dismiss for failure to prove the necessary elements of their case. For example, if the issue of the hearing is cruel and inhuman treatment grounds, the Defendant might make a motion to dismiss. The Defense might claim that the other side did not establish a “prima facie” case or that the facts that were elicited, assuming they were believed to be true, do not establish the elements of cruel and inhuman treatment. After the testimony of the Plaintiff’s side, the Defense may present their own witnesses. Once testimony is finished each side can make their closing arguments. Sometimes there are motions at the close of both sides testimony as well. Judge’s might rule right away and dictate their decision from the bench. Other times they reserve decision. When they reserve the decision they review the evidence, type a decision and mail it to the parties.
There is no substitute for solid representation at a trial. While this blog might be helpful to understand the process, trial practice is hard. Please click around our blog and website for more information about divorce, mediation, family law and collaborative law. Call too about your free consultation. It would be our pleasure to speak with you about it.