By Sara Pitcher
My previous divorce article “Divorcing When Living In Separate States” discussed how to establish the proper jurisdiction for divorce. Once proper jurisdiction has been established, there are additional questions that may arise.
Often in a situation where the spouses live in separate states, jurisdiction is established in a court near one of the parties. For the other spouse, questions arise on how to handle the distance, including whether you must appear in court.
1. Appearing By Telephone
In some instances and courts, technology may be available that would allow the out-of-town spouse to appear for some hearings by telephone.
Unfortunately, this technology is not available in all instances and if it is available, it is up to the judge to determine whether it is allowable in each individual case and for each individual hearing. Even if a judge permitted the out-of-town spouse to appear telephonically for hearings, it may not be advisable.
While it would seem to be advantageous to appear telephonically because of the reduction in travel costs, there are severe disadvantages as well.
Often, exhibits and other documents are presented at hearings. If an individual elects to appear by telephone and has not been given an advance copy of the proposed exhibits, he will be at a disadvantage because he will have to evaluate the exhibits and decide whether to object. Also, his basis for objecting to the admission of the exhibits will be based on a very brief description of the document during the hearing. This can place the out of town spouse at a disadvantage.
In addition to documents being admitted into evidence, witnesses may be present to testify at a hearing. Witnesses can even include the parties themselves.
Witnesses are judged on their credibility. Judges and lawyers often consider a witnesses demeanor in determining their credibility and lawyers may use a witness’ demeanor to judge whether to ask further questions on a topic based on visual cues from witnesses. If a party is not present to observe the witness and their demeanor as they testify, they may not get the full effect from questioning the witness.
In addition, a judge may not give as much weight to a party’s testimony if the party is not physically present. This is because the judge is unable to see the visual cues from the witness that tends to help the judge assess the believability of the testimony.
Relying on technology in order to appear in court may also cause delays in the case if the technology is not working properly at the time of the hearing. If the technology is malfunctioning, the hearing will often be delayed, drawing the case out for longer than necessary.
It is also beneficial for a party to be present at all hearings to allow the judge to associate a face with the parties’ name and let the judge see that the party is invested in the case and the outcome is important to him, especially if the parties have children and child custody and parenting time issues are being litigated.
2. Hiring A Local Divorce Lawyer
If a party has decided to appear by telephone to some or all of his hearings, it would be advisable to hire a mens divorce attorney from the state where the hearings will be held. That way, the attorney can attend the hearings in person and protect the client’s legal interests at the hearing.
For smaller hearings, if the technology for the party to appear by telephone is malfunctioning, the court may allow the hearing to continue without the presence of the out-of-town party, since his attorney will be present. Local counsel would also be present at the hearings to review exhibits, question witnesses, and object where necessary. This would limit many of the disadvantages to the out of town client.
It would still be advisable to attend as many hearings as possible in person in order to show the judge your investment and eagerness to participate. In addition, it will allow the judge to assess you as a witness during any testimony that you provide by allowing him to see your facial expression and reactions as you testify.
3. Divorce Settlement Agreement
Another way to avoid having to appear in court is to reach a divorce settlement agreement with the other party. Agreements can be reached on individual issues or agreements to settle the entire case can be reached.
If the parties reach a divorce settlement agreement, it should be written and signed by both parties in order to submit to the court. The most effective way to ensure the agreement will hold up and meet the requirements of the court would be to hire a divorce lawyer to write the agreement.
Each party will have the opportunity to have his or her attorney review the document prior to signing it, then the parties will sign the agreement and it will be submitted to the court. Once the parties have reached an agreement as to all of the issues, then no further hearings will be held.
The out-of-town party may find that the local party is using the travel to court as a bargaining chip in settlement negotiations and uses it to get a more favorable settlement. Both parties should be aware of this prior to negotiating.
As soon as jurisdiction is properly established, the out of town spouse should determine whether he will be able to travel to each hearing, and if not, what his options are for having a local mens divorce attorney attend on his behalf or whether he would like to try to appear telephonically. The best course of action would be to plan to attend.
Cordell & Cordell has divorce lawyers for men located nationwide.