12 STEPS OF DIVORCE: Step 11 – Witnesses, Pretrial Deadlines & Permanent Orders

divorcing-couplePart 1

 

After years of marriage, Art Aingel received the call from his attorney that he was officially divorced. He had settled his case in mediation, avoiding a costly trial, and man was he relieved about that!

Art called his friend Draco DeVille, who was going through his own divorce, to share his good news.

By contrasting his divorce with Draco’s, Art grew to realize that his own divorce journey was relatively smooth. To say Draco’s divorce was a bumpy ride would be an understatement. More like it was going to hell in a hand basket.

Rather than congratulating Art on being divorced, Draco launched into a tirade about his own upcoming PERMANENT ORDERS HEARING. Draco wanted Art to testify at the hearing on Draco’s behalf. Ugh, thought Art. The last thing he wanted was to get dragged back into the divorce process.

“C’mon buddy, it will be fun!” Draco coaxed. “Think of what a blast it will be to rake my soon-to-be-ex over the coals in my PERMANENT ORDERS hearing! Get revenge on those former wives of ours. Oh, and if you don’t mind, why not stop by tonight for a joint and to help me write my JOINT TRIAL MANAGEMENT CERTIFICATE.”

“Draco, you know I don’t get lit anymore. I am in sobriety now, for one thing. And I get the kids tomorrow. Smoking weed would be against the PARENTING PLAN, not to mention an all around bad idea for me.”

“It’s legal man. You are such a buzz kill ever since you got divorced,” Draco pouted.

“Which was exactly one day ago!” Art responded.

“Well, it sounds like your ex has you in shackles,” Draco crowed. “I feel sorry for you, bro. After my hearing, I am going to have my ex under my thumb!”

“Why waste your time trying to control a person who no longer wants to be part of your life? Isn’t it better for you both just to move on?” Art asked rhetorically.

“Not if it means getting the shaft — which it sounds like you did!” Draco persisted. “That is why I am going to trial so I can give that judge a piece of my mind. Let the court see what a queen Bee my wife is and get the judge to stick it to her! That’s why I need your TESTIMONY. I have a whole script ready of all the bad things I want you to say about her.”

“Draco, you cannot tell me what to say. I need to say the truth. Besides, Colorado is a NO FAULT STATE. If the marriage is IRRETRIEVABLY BROKEN then that alone that is enough for a divorce in Colorado. The court usually does not care whose fault it is or how bad either of you are.

“The court will want to address FINANCIAL ISSUES: DIVIDE YOUR ASSESTS AND DEBT, DETERMINE CHILD SUPPORT AND MAINTENANCE.

“If there are minor kids in the house, the court will address PARENTING ISSUES: ALLOCATE PARENTAL RESPONSIBILITY (PARENTING TIME AND DECISION-MAKING) IN ACCORDANCE WITH THE BEST INTERESTS OF THE CHILDREN.”

Art heard himself saying this and realized he sounded like a recording of his own attorney. Oddly, he felt proud of this fact. “Draco, we have been over this before. The court is not going to decide who is the ‘villain’ or ‘victim’ in your divorce unless it relates to the issues I just mentioned – parental responsibilities and financial issues.”

“Well, the fact that she is a royal pain in the butt is going to relate to the best interests of the kids. They hate her! Or at least they will if I can talk them into it.”

“Draco, I cannot believe I heard you say that. By STATUTE, a parent is supposed to foster a loving relationship between the children and the other parent. Again, for good reason, it is the right thing to do. It hurts your kids to put them in the middle or to teach them to hate. I know we are both hurting. I know how hard it is to do this, but you have to take the high road for the sake of your kids. If you don’t, it messes them up in the head. Kids do not react well to being pulled in two directions.”

“Well, whoever wrote that statue about getting all lovey-dovey does not know, Des!” Draco shouted. He was really getting worked up. “Who has a right to tell me who I gotta love anyway?! That’s rubbish.”

“It’s STATUTE not statue, bud,” Art corrected with a sigh. Art realized he would never convince Draco of his point of view about not putting kids in the middle.

Their parallel divorces had caused Art to see how different he was from his friend on many levels. The best he could do was to get out of the phone call, and out of testifying, as quickly as possible.

“Well, Draco, be that as it may,” Art said, “I really do not think you want me as a witness. My attorney said that you do not get much hearing time, and it is better to have an expert such as your CFI or your business appraiser testify, in addition to you, with what little time you do have.”

“Ugh, you are always listening to your attorney!” Draco complained. “You should tell that attorney of yours to take a hike.”

Art smiled. “Well, actually, my friend, I can do exactly that. Because, unlike you, I am divorced! I do not need to pay my attorney anymore.” 12-steps-of-divorce-andersen-law-11

“Stop rubbing it in!” Draco sounded genuinely jealous. “I wish I had settled in mediation. Enjoy your freedom. I am going to be up all night getting my trial exhibits ready.”

As much as it saddened him that his marriage had ended, Art was pleased not to be in Draco’s shoes. Divorce was hard enough without dragging it out. Staying up all night to get ready for a hearing did not sound fun at all. Not to mention having to pay more attorney fees and costs.

“I tell you what,” Art said to Draco. “If I help you get your TRIAL EXHIBITS and JOINT TRIAL MANAGEMENT CERTIFICATE ready, will you back off about my testifying?”

“Deal!” Draco snapped up the offer, giving Art a flashback to when he used to help Draco study and write his term papers in high school and college. What Art should have been remembering, however, was how little a so-called ‘deal’ with Draco is actually worth. Draco was the king of backing out of things and then trying to make it look like it was the other person’s fault.

Part 2

Art picked up tacos and sodas on his way to help Draco. He knew they were in for a long night. However, had no idea what he was in for.

Art walked in to witness Draco and his girlfriend Sasha surrounded by documents and papers. Draco’s two children were sorting through them too, sullen expressions on their faces and they read through their father’s credit card bills and the history of their parents’ multiple bankruptcies.

Art immediately pulled Draco aside. “You should not be involving your kids in this, Draco. It is a terrible idea to put them in the middle.”

“Can’t be helped,” Draco shrugged. “I got too much to do!”

“I am serious about this,” Art folded his arms, rising to his full height. “I cannot be part of involving children in the litigation or the details of the divorce. Either they go or I go.”

Draco stared at the ceiling as he tapped his chin thoughtfully, obviously attempting the mental math as to which option best benefitted him.

Finally, he went back to the living room. “Kids, it’s late. You got school tomorrow. Hit the sack.” The two lost no time in heading for their apparent bedrooms in the basement.

“I need the help of an actual adult,” Draco said to Art. “They are two of the laziest kids I ever met. Don’t know the meaning of the word ‘work.’ ”

Learned from the master, Art thought to himself. Not to mention the proverbial rotten apples not falling far from the poisonous tree.

“Besides,” Draco muttered quietly, “why should I pay them each $10 per hour when I got someone who can work for free?”

Art pretended not to hear that part.

Draco had a list of 40 people he planned have testify at his hearing. His children were on the list, along with half of Draco’s friends and relatives. He also had the names of several well-known experts in matters such as home appraisals and parenting. People, Art was sure, Draco had never consulted much less retained to testify. Not to mention that disclosures of EXPERT WITNESSES are due 63 days before hearing.

“Let me help you,” Art grabbed the WITNESS LIST and crossed off his own name. “How many days long is your permanent orders hearing?” Art asked.

“A half day, I think,” Draco responded absently.

“Draco!” Art could not help shouting. “You have enough witnesses here for a two-week trial! You will barely have time for Desdemona and you to testify, much less all of these. You need to pare down this list. Get rid of everything CUMULATIVE.”

“Cum-u-what?!” Draco smirked.

“For Pete’s sake. Cumulative! Piling on. People who are just going to repeat what someone else already said are cumulative and the judge will not allow it. Didn’t your attorney tell you any of this or help you with the list?”

Draco shook his head. “I fired that loser.”

Art felt like his head was going to explode. “Draco, this is a nightmare. Desdemona’s attorney is going to bury you! An attorney against a regular guy. It’s not a fair fight, not to mention you are hardly prepared.”

For a moment, Draco looked genuinely concerned. Then he shrugged. “How hard can it be? Sasha, get me a beer. Let’s get down to business.”

“Get it yourself,” Sasha grunted. “I need a break. I’m going out to meet friends at the brewpub, remember. You coming?”

Draco looked toward Art, as if Art might actually give him permission to go. “Just one beer,” he shrugged.

Art shook his head, and said, “No!” It was just like college. One beer was never just one beer, especially when it came to Draco on the night something was due.

Draco reluctantly agreed to stay and continue preparing.

Art had brought some papers from his own proceeding, which his attorney and he had completed together on a timely basis. In fact, that had finished everything early in order to use them for their mediation and mock mediation. Together, Draco and Art completed drafts and had them ready for Draco to run to court the next day.

“By the way, my friend, this is NOT how to do it,” Art yawned as the two parted ways near 4 a.m. Heading home, Art could not help noticing that Draco’s young girlfriend had not returned from her night out.

Part 3

A week later, Art stood in the hall outside the COURTROOM where the DeVille hearing would be taking place. The case was posted on a piece of paper on the wall outside the courtroom: “DEVILLE, DESDEMONA, PETITIONER” and “DEVILLE, DRACO, RESPONDENT,” along with their case number 2016 DR 666 and the name of Desdemona’s attorney.

“Hey,” said a familiar voice. He turned to see Angela standing beside him. Oddly, Art’s hands began to sweat, and he felt a lump in his throat. It was the first time he had seen her since the divorce. Angela showed him the SUBPOENA that Desdemona’s attorney had served on her, asking that she testify at the hearing.

“I cannot imagine what I could say,” Angela shook her head. Angela would have to spend the entire hearing in the hall and could not watch the hearing or support her friend. This is because the judge SEQUESTERED ALL WITNESSES, making them wait outside on the benches in the hall until they testified.

Art, meanwhile, waited inside. Waited for Draco who showed up late, entourage in tow, including Sasha who, Art imagined, Desdemona would not be happy to see.

Desdemona was the PETITIONER who initiated the case, so her ATTORNEY went first. It looked to be a bloodbath. Desdemona’s attorney attacked Draco for errors in the joint trial management certificate, refusing to conference with her, walking out of mediation without a GOOD FAITH EFFORT and for filing FRIVOLOUS motions that were not justified in fact, law or a reasonable argument for extension of law.

Of course, Draco did not know what he was doing, Art thought. He was not an attorney! The judge would have to take pity.

Then the judge turned to Draco and said, “Now, sir, by choosing not to retain an attorney, you still will be held to the law. You need to make sound legal arguments just as an attorney would do. I will be understanding, but it is important that you spell out the FACTS of your case and apply the LAW to those facts. Also, be mindful of the time. The court notes that you were fifteen minutes late. That will be attributed to your time. Each party will get two hours to present your case including OPENING, CLOSING, DIRECT AND CROSS-EXAMINATION. If you are talking, your time is running.”

Draco nodded. Art could see that he was dripping in sweat. Desdemona’s attorney waived his OPENING STATEMENT and the judge seemed to be happy with this choice.

Draco, however, gave a long meandering statement about Desdemona spending too much money, nagging, cheating on him.

“With all due respect, sir,” the judge said, “we are in a NO FAULT STATE. Most of what you are saying is IRRELEVANT and will be disregarded. Please stick to the facts. Now your JOINT TRIAL MANAGEMENT CERTIFICATE does a fairly decent job of outlining the issues. I recommend we go with that instead of more statements.”

Art felt a small bolt of pride about the positive comment about the Joint Trial Management Certificate as he had helped prepare it. He was less happy about Draco’s response to the judge’s obvious cue as to what the judge wanted Draco to do.

“With all due respect your judge lady, I don’t think you understand what is going on here. Desdemona lied all the way through our marriage and spent money like it was going out of style. And that one time when the police did come, again, it was because of her lying. I will take a lie detector test, I tell you, and she should too! I so move.”

The judge appeared to be getting frustrated.

“Sir, if this is how you want to spend what little time you have, then so be it. But I am telling you that this is not helping. And as for what appears to be an oral motion for two lie detector tests, the motion is neither timely nor relevant to the issues at hand. I cannot imagine why such results would be admissible in a domestic case and, in any event, that should have been requested weeks ago in accordance with the DEADLINES in the CASE MANAGEMENT ORDER and pursuant to the COLORADO RULES OF CIVIL PROCEDURE. The court will make its own conclusions as to the CREDIBIILTY of the parties. Credibility means whether you appear to be believable, telling the truth. Motion denied.”

Even so, Draco wasted five more minutes on his opening statement. As if it were a point of pride for him to go on and on, slamming Desdemona. Desdemona, meanwhile rolled her eyes, smirking at her attorney. Art realized Desdemona had an advantage having an attorney who knew his way around the court. He would not take anything to be in Draco’s shoes, digging himself further and further into the pit.

The court then signaled Desdemona’s attorney to CALL THE FIRST WITNESS FOR THE PETITIONER. Desdemona’s attorney called Desdemona to the STAND.

Desdemona walked over to a small desk near the judge’s BENCH, which was really just a high desk towering over everyone else. The judge’s elevated desk together with her robe made her look like an authority figure, Art realized. It made sense because this was the first time he had ever seen the DeVilles exhibiting anything close to controlled behavior.

Desdemona looked nervous, for half a second, before giving her name for the record. The judge reminded her that she was UNDER OATH and SUBJECT TO PENALTIES FOR PERJURY for any testimony she might give. Desdemona immediately grinned and went straight into drama mode. Art remembered that she has been in a couple of school plays back in college. Desdemona loved the limelight.

Desdemona’s attorney began to ask her questions. Art recalled that this was called DIRECT EXAMINATION. The attorney would ask OPEN-ENDED QUESTIONS because he was not allowed to ask LEADING QUESTIONS that basically led the witness to the answer in the way they were asked.

Of course, everything the attorney asked was designed to make Desdemona look good to the court. The attorney asked Desdemona about the children. Desdemona enjoyed talking about them and their various activities. She could not resist indicating that she did the bulk of everything and that Draco “did not help much because he preferred hanging out with his girlfriend who is not much old than them! He’s a cradle robber!” Desdemona added to the drama by standing and pointing an extended index finger, complete with long jewel-studded acrylic nail, at Sasha who was seated in the courtroom.

“OBJECTIFICATION!” Draco shouted, standing up to state his objection for the court. “When you point at someone, Des, you got three more fingers pointing back at you!” Draco shook his own finger at his wife. “SNAP!” he could not resist adding, snapping his fingers and turning back to wink at Sasha who, in turn, rolled her eyes.

Art cringed. The proper term was OBJECTION. Art was 90 percent sure Draco had no idea how to make a proper objection in any event.

“This is formal proceeding, sir. We use last names like Ms. DeVille or you can say ‘the Petitioner,’ ” the judge said, frowning.

“Now, what is the nature of your objection?” the judge added wearily. Art imagined it might be draining to see one non-attorney after another wasting the court’s time by trying to try their cases without training or help. Art had come to realize that lawyers are lawyers for a reason. He could not pretend to know how to be one any more than his attorney could go to his firm and pretend to be an engineer.

“She’s lying!” Draco shouted.

The judge replied calmly, “That objection would go to the WEIGHT of the evidence and not its ADMISSIBILITY. I will listen to all the witnesses and determine CREDIBIILTY. Objection denied.”

Draco was visibly frustrated. “Well, also what’s it got to do with anything anyway? Everyone keeps saying it’s a no fault divorce state, and here she’s pointing the finger at me and saying it’s my fault the kids are messed up.”

The judge took a deep breath. “That sounds to be a COLORADO RULE OF EVIDENCE Rule 402 objection based on RELEVANCY. But when it comes to the BEST INTERESTS OF THE CHILDREN pursuant to COLORADO REVISED STATUTE Section 14-10-124, the court will consider the past pattern of involvement of the parties with the children. The testimony is the Petitioner’s impression of that involvement, or lack of involvement in her opinion. So I will allow it.

“However, Ms. DeVille, be mindful that relationships with people who are not interacting with the children is not necessarily relevant. Name calling and antics like jumping up and literal finger pointing are not going to help either of you here.”

Draco seemed satisfied with this final comment and punched the air. One of Sasha’s friends, seated in the courtroom, said, “That’s frigging right!” Sasha and her friends exchanged high fives and fist bumps.

“Ladies and gentlemen,” the judge said sternly. “I will not tolerate any outbursts from the parties or anyone in the courtroom. You must sit by silently or leave.”

The hearing, to Art, seemed something like a circus. The judge had to keep order. As much as he did not like Desdemona’s new attorney, especially given what Angela had said about how much he was charging Desdemona, he seemed to be the only person who knew how to act during a hearing. Draco, Desdemona and most of their friends seated in the courtroom did not.

Desdemona finished testifying, and then it was time for CROSS-EXAMINATION. The strange thing was that because Draco was serving as his own attorney, he was the person to cross-examine Desdemona.

“Ms. Petitioner, what were you doing the night of your birthday?”

“Objection, RELEVANCE,” Desdemona’s attorney stated.

“Mr. DeVille, what is the purpose of this line of questioning?” the judge asked.

“Well, your highness,” Draco stated, “she was supposed to be with the kids, and I can prove that she was not.”

“I am not sure where this is going,” the judge said, “but I will allow it.”

Desdemona looked visibly distressed. She turned toward her attorney with a plaintive expression on her face. The attorney shrugged.

“You know where I was,” she said with resignation.

“Where were you then. Were you not at my house, to put it in the form of a LEADING QUESTION?” Draco smiled back at Art, obviously impressed with himself for remembering this term from their practice. Art had to hand it to him that it was a leading question, although it was not correct to actually point that out as part of the question.

Angela’s attorney stood up, seemingly ready to object, and then sat down again, as if to say why bother.

“Yes, I was at your house. Or what is now my house because I am living there now,” Desdemona was beet red.

“And what were you doing? Were you not spending the house with me and engaging in sexual intercourse, also known as nookie?”

“Objection!” Desdemona’s attorney leaped to his feet. “Relevance.”

“I will allow the question,” the judge said. “Objection overruled. However, I will point out that I am not sure this LINE OF QUESTIONING is helpful to either party.”

“Yes,” Desdemona muttered. “We were trying a reconciliation. Not to mention I was very drunk.” Desdemona spoke from the stand directly to her attorney as if explaining herself to him. “And in my defense, as well, the Respondent knows I am not responsible for anything I do after straight shooting tequila. Oops, maybe I should not have said that. Objection. Strike that,” she turned to the judge.

It was obvious to everyone in the courtroom that Desdemona had not shared this fact with her attorney before the hearing, and that she was digging herself into a bigger hole with every word she spoke. Yet the attorney sat stone-faced as if it were no big deal. Art realized that family law attorneys must have nerves of steel to roll with whatever punches were thrown in the courtroom. In fact, given some of the DeVille antics, Art wondered how the attorney and judge kept their cool half the time and kept from laughing the other half of the time.

The judge explained that she would not strike the response.

And then, unexpectedly, Draco shouted, “I rest my case!”

Knowing Draco well, Art realized that Draco misguidedly believed he had “won” the divorce by shaming Desdemona on the stand. This could not be further from the truth. Even as a non-attorney, Art knew that. Art needed to introduce his own evidence, including testimony about the value of the home Desdemona wanted to keep, the scope of marital debt, Desdemona’s exaggerated claims about Draco’s income, and his response to Desdemona’s argument that she should have sole decision-making subjecting Draco to supervised parenting time.

As much as he realized that Draco had put himself in that position, Art felt sorry for his friend. It would not be a fair result if Desdemona prevailed on every issue simply because Draco did such a bad job of putting on his case. In fact, that would hurt the children who, Art knew, really did enjoy time with their dad, despite his flaws.

It appeared that might be exactly what was going to happen, however, once the judge spoke. “Mr. DeVille, it is a good thing that you are close to completing your portion of the hearing as you have precisely five minutes left.”

“Five minutes of my cross-examination?” Draco asked her.

“No, sir, five minutes to present your entire case. I have been clear about this throughout, giving you ample warnings about your tendency to waste time on irrelevant issues, not to mention the fact that you arrived several minutes late.”

“This sucks!” Draco shouted.

The judge frowned at him. “One more outburst like that Mr. DeVille, and I will hold you in CONTEMPT OF COURT. No more outbursts and certainly nothing that impugns the justice and authority exercised in this courtroom.” She looked angry.

Something else had happened in the courtroom during Draco’s cross-examination of Desdemona. Sasha and her friends unexpectedly paraded out of the courtroom. Art could not help wondering whether Sasha and Draco had been an item as of the date of Desdemona’s birthday. Perhaps in his eagerness to try to destroy his soon-to-be-ex-wife on the stand, Draco had lost sight of the testimony’s effect on his new amour.

Desdemona presented two more witnesses, Draco sitting by helplessly having used all but five minutes of his case. He did not cross-examine any of Desdemona’s witness; however, Art witnessed the judge doing some of Art’s work for him, asking pointed questions of the witnesses herself. Art realized the judge was trying to uncover facts to get something close to a fair result, especially with issues about the children, despite Draco’s botched job of representing himself.

Desdemona did not call Angela as a witness. So Angela had so sit in the hall the entire morning and after lunch, the hearing going well past the schedule time. What a waste of time for Angela, Art thought to himself.

When it came time for Draco to testify on his own behalf, the judge allowed him to go for almost 20 minutes, mostly asking her own questions about the children and his income.

Art was surprised that Desdemona’s attorney waived the CLOSING STATEMENT. Instead, he directed the judge back to the JOINT TRIAL MANAGEMENT CERTIFICATE for a statement of the issues. The attorney had used most of the time to put on witnesses, ticking items on a checklist each time a point was covered. Apparently, he thought he had done his job without the closing. The judge seemed to agree, saying, “Thank you.”

Art had noticed the judge typing furiously on her keyboard throughout much of the hearing. His attorney had told him to expect to see this in his own permanent orders hearing. She said that the judge often wrote an ORDER during the proceeding, reading it aloud from the stand at the conclusion.

Instead, however, the judge stated that she would issue her decision one week later. All parties set a date for the order to be read to the parties and Desdemona’s attorney as part of a TELEPHONE CONFERENCE.

Art would not be part of that telephone conference, he thought gratefully. If the phone conference was going to be anything close to the debacle the DeVilles had created with their ill-fated hearing, Art wanted to be as far away from it as possible.

After witnessing a hearing about their parents, Art regretted thinking of the DeVille kids as bad apples. Sure, he was glad they no longer socialized with his own children. Between their drug abuse, couch sitting and class skipping, neither DeVille child was a good influence. But given the way their parents behaved, Art truly felt sorry for the children above everyone else involved in the case. He was sure the judge would have some tough words for both Desdemona and Draco on that score when she read them her order.

As it would turn out, the telephone conference never took place. And for a reason Art did not see coming. The day scheduled for that conference, Art received a curious voicemail from Draco. “You will never believe this buddy. Call me,” was all he had said.

Meanwhile, Angela was on the way to meet with her FINANCIAL ADVISOR and her ESTATE PLANNING ATTORNEY. Even though the divorce was over, she still needed to follow up on things like revising her WILL, changing the DESIGNATIONS on her investments and retirement, hitting all the DEADLINES in the SEPARATION AGREEMENT and PARENTING PLAN, and signing a strange thing called a QDRO (which her attorney pronounced as ‘quad row.’

Not one to miss a deadline, Angela buzzed from appointment to appointment. She could not resist a quick pumpkin spice latte to refuel. She deserved a seasonal treat!

Driving off from the drive-through lane, Angela caught a glimpse in her rearview of Desdemona and Draco coming out of the same Starbucks.

Curiously, they were holding hands.

Questions for December: It Ain’t Over Till the Tax Lady Signs: What is a QDRO? What happens to your will when you get a divorce? Why all the deadlines and what happens if you miss one?

 If you need help getting through all the steps of your own divorce, contact Andersen Law PC today. Email beth@andersenlawpc.com or call 720-922-3880.