So you’re unemployed, had a DUI, cheated on your wife or worse? If you are facing a trial in your family law case, these skeletons in your closet are probably racking your brain. What’s more, if you have already gone through a deposition, answered discovery, or had your personal and bank records and/or your friends and family subpoenaed, you’ve probably been left feeling like your bad past is the proverbial smoking gun in your case. That is – once the judge hears it, you are a goner.
Not necessarily.
The good news is, in the majority of States, “no-fault” is the rule, and what you did to potentially cause the breakdown in your marriage in your past is just that – your past. To be clear, extensive histories of domestic violence, substance abuse and so far are reflective on what you will do in the future, but an isolated faux pas – even a few – is not. Family court judges expect to hear about the bad things that occurred during the marriage, and this means skeletons for both spouses, because without them it is unlikely the family could be getting a divorced. In other words, what you did in the past will probably not surprise the judge, and the judge will probably be looking to your soon-to-be-ex to find out what her faults were, too, if she raises yours as an issue.
The bad news is, if not handled correctly, your alleged faults could appear to the judge larger than life and totally derail your case. This is because they are relevant, at least marginally, to your credibility, and your spouse will try to make them relevant to asset division, debt division, and alimony.
What should you do with them, then? In addition to consulting with your attorney, try these:
Confront It – Trial attorneys will tell you that if the bad story has to come out, we would rather you explain it during your direct examination testimony than wait for your spouse’s attorney to ask you about it during cross examination. For one thing, you will look suspicious to the judge if you hide information everyone knows about – such as that DUI – or minimized it during your direct exam. For another, during cross examination, you are limited to answering questions, rather than explaining your position. This can lead you to appear as though you are justifying what you did. It is better to confront the issue – in properly couched, but honest, language – to show the judge that you recognize what occurred, to take responsibility but also look responsible and to explain why it should not make or break your case.
Negate It – While confronting it, also negate it. Highlight the positive things that have occurred in your life before and after, and now, and show how you learned from your mistake. In this way, you draw the judge’s attention back to your positive attributes while taking responsibility for your past. For example, if you do have a DUI, you might tell the judge (if this is true, of course) that you had a bad night, made a poor decision, but since then have not gone drinking and driving, went to AA or counseling, do not drink around your children, and so forth. Be prepared to present testimony from supporting witnesses who will vouch for your veracity and similarly testify that your mistake was atypical and that the judge should not consider you a bad guy. You might also consider a mental health or substance abuse evaluation (subject to your attorney’s advice about when and whether you have to disclose the results to your opponent) to demonstrate that you do not have an ongoing or potentially reoccurring problem.
Don’t Mudsling – It will be tempting, but don’t mudsling. Despite how “bad” your spouse and her attorney will want to make you look, stooping to their level and pointing out all of the “bad” things your spouse did throughout your marriage usually makes you look worse. Granted, there are times when her faults need to be addressed, and if she has a history of abuse, affairs, theft, so on and so forth, then that history is certainly relevant. But it is one thing to say, mostly through your attorney’s questioning of her, that she has a history that is indicative of the reason for your divorce and her credibility and quite another for you to say, during testimony, “well, one time she did this, too.” Finger pointing, to a judge, makes both adults look like children hung-up on each other’s problems, rather than their children and/or their assets and debts, and the judge is likely to discredit the both of you. Nothing quite does it like a trial reminiscent of Jerry Springer for the judge to decide neither of you is reasonable and neither of you should get what you are requesting out of the trial. It is best, rather, to let your attorney guide the questions about and to your spouse, rather than you tell the judge about her.
Remain Calm – But you can bet your spouse’s attorney will try to get you frazzled and go right for your skeletons during your testimony. The same holds true for answering discovery. But, take if from this trial attorney, trial attorneys typically ask those intermeddling questions about all of the bad things you did throughout your marriage to gauge how you react, rather than who you are. If you dismiss the mistake you made, or deny it altogether, then we know we have on our hands someone who is apt to lie, and we will elicit your testimony before the judge to show so. By comparison, if you blame your spouse or someone else, then we know we have someone who cannot accept responsibility, and that we will also show to the judge when asking the judge to decide who should pay debts and how (do we really trust that this person who shifts blame will pay bills in his ex’s name on time and not blame her for a late payment?) or decide custody (is this parent going to blame everyone else when his child does poorly in school?) And so forth. However, if we see answers that confront the past, negate it and demonstrate how thing have changed, then we, and the judge, are more likely to conclude this guy is reasonable.
And al of this means – as part of your attorney’s trial strategy, of course, -- that means you are more likely to see a favorable ruling out of your trial.