When you are ready to turn the page, protect your rights and your future with experienced family law advocacy, we can give you the help you need to face family law challenges in Western Pennsylvania. Call our Pittsburgh, Pennsylvania office for a free telephone consultation at 412-371-4500.
“I’d marry again if I found a man who had $15 million and would sign over half of it to me before the marriage and guarantee he’d be dead in a year.” – Bette Davis
One of the most common questions clients ask me is “Who will get what out of the divorce?” immediately followed by, “Do I have to give my spouse anything?” My answer usually begins with the phrase that clients hate most: “Well, it depends…” Every divorce in Pennsylvania is different when it comes to property distribution, and the particular facts of your situation can make a tremendous difference in the outcome.
What is the Marital Estate for divorces in Pennsylvania? Before even approaching the question of which spouse gets which property in the settlement, a good family law attorney will first analyze what the marital estate contains. The divorce lawyer representing you for property distribution must determine what assets are owned by you and your spouse (irrespective of whose name is on them), what those assets are worth, and what debts you owe. Every rule has its exceptions, of course, but in general if you or your spouse acquired an asset or a debt after your wedding and before your final separation, Pennsylvania says that it is part of the marital estate. The property you owned before you got married usually stays yours alone, but any increase in value prior to the date you separate is also included in the marital estate. This means that assets or debts in one spouse’s name can still be marital property, and therefore can be subject to equitable distribution by a family court judge. That includes credit card debt in your name or your spouse’s name alone, as well as the marital increases in the value of individual retirement assets such as pensions, 401Ks and IRAs.
After your divorce lawyer has determined the size and value of your marital estate, it is time to explore how to divide it between the two of you either by settling your case, or by moving forward toward an equitable distribution trial.
Does Pennsylvania split marital property 50/50 down the middle? Nothing about marital property division in Pennsylvania is automatic. Before the best divorce attorneys are prepared to take a firm position about which spouse should end up with what property, first they will address the percentage share of the marital estate’s value that should go to each spouse. There are many instances in PA of equal division of the marital estate’s value, but divorce lawyers dealing with asset distribution will often talk about “skewed” splits in which one spouse will walk away with a greater share of the marital estate than the other spouse.
Skewed splits are especially common when one spouse has a substantially greater earning capacity than the other. PA divorce law recognizes that one spouse often is economically dependent upon the other, for reasons that include one spouse working as a homemaker, or one spouse being unable to earn as much as the other spouse in the local job market. Pennsylvania law requires the court to prioritize economic justice over a formula-based outcome in any marital property division that goes all the way through court, and that includes consideration of various factors such as the relative earnings (and capacity to earn) of each spouse, the length of the marriage, and the standard of living that the couple enjoyed.
Even an equal distribution of the marital estate can require one spouse to give up separately-titled assets.
I worked to earn my pension, so why does my spouse get to touch it? Retirement assets usually are among the biggest things to divide in divorce; and often, the spouse with higher wages often has put more money into savings funds such as IRAs, TIAA-CREF plans and 401K plans. My economically-advantaged clients often become upset that they have to give part of these assets to their soon-to-be exes. From the higher-earning spouse’s perspective, it simply is not fair that they worked as hard as they did, earned what they did and sacrificed what they did, only to have to give part of it away to the spouse who failed to do the same thing.
You can expect a Pennsylvania family court to view things differently. One spouse’s time might be worth more money than the other’s in the world of employment, but as between the two of them in their marriage they will be viewed on much more of a level playing field. Were it otherwise, the breakup of a traditional family arrangement featuring a breadwinner spouse and a homemaker spouse would leave the breadwinner extremely well-off, while consigning the homemaker to financial ruin. No divorce court will permit this.
It may help you to understand that for purposes of Pennsylvania divorce law, marriage is neither a religious sacrament nor an affair of the heart; instead, it is no more (or less) than an economic arrangement created by contract (getting married), much in the nature of a shared business enterprise. A family court presiding over a divorce case is unlikely to be interested in the family drama incident to any marital breakup, but will focus instead upon the dollars and cents of the marriage along with what those dollars and cents were used to buy.
For that reason, it is best to think about Pennsylvania divorce as being about economic closure rather than being about personal closure. The family court is unlikely to overlook the prospect that lower-earning spouses become financially dependent for many reasons, such as having sacrificed income potential or education, having focused on caring for the children, or having been in a state of impaired health. A divorce court judge is not going to leave a dependent spouse destitute simply because the marriage came to an end, and instead will want to ensure that he or she has sufficient resources available to attain financial independence. Giving a dependent spouse the greater share of the marital estate is one way a court can achieve that goal. This is an example of why “equitable distribution” often is not the same as “equal distribution” in the eyes of a Pennsylvania divorce court.
How a Pennsylvania family court divides marital property in divorce. In making an award for equitable distribution of the marital estate, a judge has to consider eleven different factors. These factors include the length of the marriage, the incomes and earning potentials of the spouses, whether one spouse will be caring for minor children, and the opportunity available to each spouse to increase earning potential. None of these factors are assigned greater importance than any other by default, meaning that your judge has substantial discretion to determine a distribution that fits your (and your ex’s) actual situation and needs.
You may be surprised to learn that “marital misconduct” is specifically excluded from consideration by the court when it comes to allocating your marital property between you and your former spouse. Fault grounds for divorce have absolutely no effect on equitable distribution in Pennsylvania, and so claims of adultery or abandonment have no effect when dividing marital property. Your judge is there to judge the case, and not the hearts and souls of the ex-spouses. If you own a pen, for example, and use that pen to write terrible things about your spouse… you still own the pen. Nobody cares whether you deserve it, because (rightly or wrongly), ownership of property in our society has nothing to do with what the owner might deserve.
You can expect the court to worry less about what you and your spouse might deserve, and more about what each of you may need.
If you need legal assistance with your marital separation in east-end communities such as Squirrel Hill, Shadyside and Monroeville, call our office to set up a personal consultation with an experienced Pittsburgh-area marital property division lawyer and to learn how to get the most out of your separation. Please do not comment anonymously, and do not post anything that you consider confidential. We try to be responsive to commentary and questions, but know that posting here will not create an attorney/client relationship and that we will not offer legal advice via the Internet.
Change is the law of life. And those who look only to the past or present are certain to miss the future. – John F. Kennedy
On October 4, 2016 Pennsylvania Governor Tom Wolf signed into law House Bill 380 of 2015, which reduced the waiting period for an “Irretrievable Breakdown” no-fault divorce ground from two years after the spouses separate, to only one. The change took effect on December 5, 2016.
The way we were: two year separation before divorce in PA. Pennsylvania has two “no-fault” divorce grounds: Mutual Consent, and Irretrievable Breakdown. Mutual Consent requires no particular length of separation, but does require the active cooperation of the spouses, and either spouse can bring the divorce process to a screeching halt simply by refusing to sign the divorce consent forms. If there is no mutual consent, grounds for divorce of Mutual Consent simply cannot be established, that remains true even after Pennsylvania’s divorce law change goes into effect.
For the divorce-filing spouse in Pennsylvania who wants to move things forward anyway, but who cannot establish old-fashioned “fault” grounds (such as adultery) against a spouse, that leaves only the Irretrievable Breakdown divorce ground. Irretrievable Breakdown does not require consent, but does require not only that the marriage be irretrievably broken (no surprise) but also that two or more years have passed from the date of the parties’ final separation. Divorce is never “automatic” after two years in Pennsylvania; this is a common misconception. In most cases, the two-year separation simply means that your spouse’s refusal to consent to divorce stops being a barrier against your moving forward toward closure. At the two-year mark, your spouse’s non-cooperation changes from “You shall not pass!” into “Whatever, do what you have do.”
“New wave divorce” in Pennsylvania: the two-year wait gets cut in half.
For married couples in Pennsylvania who separated on or after December 5, 2016, the Irretrievable Breakdown ground for divorce will require only one year of living separate and apart for one spouse to be able to proceed toward a divorce decree without the other spouse’s consent. It is not an exaggeration to say that this is a major game-changer.
Please note that married couples who separated before December 5, 2016 must still have a full two years of separation to establish grounds for divorce under “irretrievable breakdown.”
How will the change in Pennsylvania law affect my divorce? Imagine that you live in PA and are married-but-separated, and that you are economically dependent upon your spouse (which might be your exact situation). You might already know that Pennsylvania law allows you to file for spousal support without also having to file a claim against your spouse for divorce. Once you have been to court and your spouse is required to pay support money to you each month, you are effectively being paid to do nothing at all when it comes to cooperating with a divorce process. What do you do next?
In most cases you do what you are being paid to do, of course: nothing… nothing at all. Your spouse can go ahead and file for divorce, but you have no obligation to sign the consent forms that would let the divorce process move forward under Mutual Consent. Unless you have a compelling reason to file for divorce yourself (and sometimes those reasons exist), if you are like most people you will end up stretching your advantage until your spouse can move things forward anyway under the Irretrievable Breakdown ground.
The change to Pennsylvania divorce law chops a full twelve months off of that free ride. For people stuck paying spousal support month after month, the reduced waiting period might well be cause for celebration. If on the other hand you are a Pennsylvania spouse who receives support, you now will have a much smaller window of time to get your finances and your life together and to decide “what you want to be when you grow up,” before you can be compelled to participate actively in in the process of working your way toward full economic closure for your marriage (possibly including alimony and marital property division). Since the most successful alimony claims tend to involve a clear plan for improving your economic situation, an economically-dependent spouse’s window of opportunity is now massively reduced. The same procrastination that would have been your best friend under the old law may now be toxic to the strength of your case.
This change makes it more important than ever before to talk to a local Pennsylvania divorce lawyer sooner rather than later. There is opportunity as well as challenge in every situation, no matter how difficult, and your best chance to take advantage of it only happens if you are willing to be proactive. Where divorce and family law are concerned, an ounce of prevention really can be worth a pound of cure.
If you are in Southwestern Pennsylvania, call our Pittsburgh divorce and family law office for your free consultation by telephone.
If you need legal assistance with your divorce or family law matter in Southwestern Pennsylvania, call our office to set up a personal consultation with an experienced Pittsburgh divorce lawyer. Please do not comment anonymously, and do not post anything that you consider confidential. We try to be responsive to commentary and questions, but know that posting here will not create an attorney/client relationship and that we will not offer legal advice via the Internet.
Once upon a time, a group of people from a mighty civilization found themselves united in spirit by a shared compassion over the plight of those who were less fortunate than themselves. Knowing well that most things only change when somebody changes them, they resolved to travel together to a faraway farming village – the first of many, they hoped – to educate the people there in modern agricultural methods that would certainly improve their lives. They made their plans, gathered their supplies and their courage, and set off. Along their travel they often discussed eagerly the grand welcome they would receive upon arriving, and the celebration of a grateful community after the first fruits of their mighty gift became ripe for the harvest.
When at last they reached the village after their long journey, they were astonished and dismayed to find that most of the villagers either viewed them with suspicion, or simply ignored them. The rest greeted them with haughty anger. “Who are you,” they demanded in various ways, “to come to our home and presume to tell us how we should raise our food? We have been farmers for all of our lives. Our blood is in this land, and this land is in our blood. We practice faithfully what our fathers and our grandfathers taught us, just as they learned it from their own fathers and grandfathers going back and back to the very beginning of the world. You are obviously fools who would presume to teach your own mothers how to give birth, and if we listened to you we would soon be planting leather so that we might harvest cows! You should go back home to your land of fools and stop bothering us, or stay here and learn from a civilized people the proper way to work the land so that your elders will know that you did not waste your time among us.”
Some of the travelers felt deeply insulted to hear their intentions turned against them. “We came here to do good,” they said among themselves, “but these ungrateful dirt-scratchers are no smarter than their cattle. They live one failed harvest away from watching their own children starve, and yet they spurn the gift we traveled so far to give! And they call us fools? Let us go where people are wise enough to know treasure when they see it, and leave these peasants to eat their arrogance and effrontery when nothing else is left for them to put between their teeth.” Those who felt that way soon departed to nurse their wounded pride, and whatever may have become of them after that is no concern of ours.
The travelers who chose to remain and try again gave sad farewell to their disheartened brethren, and then gathered together in council to think and speak upon the mystery of a good gift casually spurned. The discussion went long into the night, but finally they thought they understood. “Even the purest water slakes no thirst if none will trust that it is good,” they decided, “and people prefer to lift cups to their own lips.” Thus resolved, when morning came they made their plans.
At evening of the same day the newcomers politely approached the village elders with gifts, and requested permission to use as their own a plot of nearby farmland, long fallow and now grown to meadow. “Plant as much leather as you like and buy whatever you need to do it,” the elders responded, laughing, “but we expect you to host a feast for the entire village with the first of the cows you harvest! And if you fail, don’t expect us to fill your empty bellies when the season turns.”
The travelers moved their belongings to the land that was now theirs to work, and for several months they and the villagers left each other quite alone. That was just fine with the villagers; a good joke was welcome now and again, but there was always work to be done: crops and children to raise, cattle and children to feed, and pots and children to shape and harden to readiness for the tasks awaiting them.
The days came and went as always, until after several months the strangers returned to seek out the elders and to invite the whole village to gather at the next full moon for the promised feast. The appointed night came amidst much gossip and speculation, and the curious villagers flocked to the appointed gathering place to discover an astonishing bounty waiting for them. Here were the largest fruits they had ever seen, nearly free from blemish and sweet as a baby’s laughter. Here were roasted vegetables in seemingly endless quantity, their savory odors perfuming the air. Here was fresh bread, with a flavor at once unfamiliar and enticing. Here was oiled meat spiced with herbs. There was food enough to feed half again the number of people who dwelled in that place. Amidst surprised laughter and excited chatter, the feasting began.
Later, when there were none who could swallow another morsel and the strangers’ unusually flavorful beer had filled each cup several times over, an elder quietly approached one of the newcomers. “This is amazing,” he said. “I would accuse you of feeding us upon our own stolen food and drink, except that I know we cannot grow what you have grown or brew as you have brewed. How did you do it?”
“I shall not tell you,” the traveler replied. “We plan to become very rich from selling our produce and our beer. If you learn to do things the way we do them, people will buy from you and not from us because you are so well-known and respected, while we are strangers.”
“Please, I must know. We both shall benefit. I will pay you the year-wage of three laborers to learn what you do.”
“I cannot. I must not. If my people found out that it was I who gave away our secrets, they would beat me and cast me out.”
“I swear on the honor of my grandfathers’ grandfathers and my grandmothers’ grandmothers that I shall tell no one of how I learned. Year-wage of five laborers.”
“You ask me to risk my life, for five! How could I do such a thing for less than ten?
“Seven.”
“Eight, and you protect me if my people find out.”
“Done, but only half up front and the other half when I see it work.”
“Done! I will visit your farm at midnight during each new moon until harvest. Remember, tell no one.”
* * *
Two weeks later, the travelers on their borrowed farm finished their labors for the day and gathered at sunset for the evening meal. Toasts and merry songs added uncommon spice to their dining on that very special occasion, and the merriment continued until long after the stars began their bright dance through the moonless sky. Outside the noisy hall in a line along the fence, seven mules waited patiently in the darkness to carry their burdens of seeds, tools and diagrams to seven secret meetings.
If you need legal assistance with your divorce or family law matter in Southwestern Pennsylvania, call my office to set up a personal consultation with a Pittsburgh family court attorney. Please do not comment anonymously, and do not post anything that you consider confidential. We try to be responsive to commentary and questions, but know that posting here will not create an attorney/client relationship and that we will not offer legal advice via the Internet.
“Hey, that was fun! Can I do it again?” — No witness, ever.
I have to testify at a hearing in family court. What now? It was bound to happen, sooner or later. Your family law attorney has filed papers and negotiated for you while you got on with the business of living day to day, but now it’s time to squeeze more time off from work because the court is ready to hear directly from YOU about what is actually going on.
No Pennsylvania family court can make decisions about disputed issues of fact – who did what, what happened when, who might or might not be telling the truth – without holding a hearing or a trial at which you and your ex each have the chance to speak, to introduce documents into evidence, and to call any additional witnesses that might help the court to do its job. Whether you are going to court to deal with child support, child custody, divorce or another family law dispute, the court is finally ready to hear what you have to say.
Take a deep breath, and keep your hands and feet inside the ride at all times.
What should I expect when my case goes to hearing? Formalized structure. A hearing or a trial is a formal process intended to give you and your ex a full opportunity to present your sides of the case to a family court judge (or hearing officer, special master, etc.) who is giving each of you his undivided attention. Remember that although you have been living your case day in and day out for months or even years, your judge might have only the most limited knowledge of the situation that he has been asked to referee. Your hearing will be structured in a way that is designed to give the judge all the information he needs to be able to understand the situation (while avoiding the distraction of unnecessary information), to know exactly where each of you is coming from, and to be able to make a fair and informed decision.
Limited scope. Your hearing is happening so that the court can resolve a very specific set of issues and questions, and for no other purpose. Imagine being in a supermarket where the only items you can put in your cart are the ones on your shopping list. It has to be this way because both you and your ex have a Constitutional right to due process, and part of that due process is having a clear understanding of the issues to be addressed on the day you step into the courthouse. This way, everyone can be fully prepared and nobody gets blindsided.
The judge does not share your perspective. Even if your family court judge is ultimately inclined to find in your favor, he will almost certainly not see your situation in the same way you do; in fact, it is almost certain that he will not see things through your eyes, or (for that matter) through the eyes of your ex. His perspective, his goals and his priorities might be entirely different from yours. Your family law attorney should be reviewing your case with you in advance of your court appearance so that you have as clear an idea as possible of how your case will look through the eyes of the judge, what you are getting into, and what you might be able to expect. In the end, your judge is the only person in the entire situation whose opinion matters, because he has the power to tell both you and your ex how things are going to be.
Your job is simple.Your lawyer will have structured your side’s presentation in a way calculated best to educate the judge on the facts he needs to know to be able to find in your favor. Here is some good news: any experienced family lawyer in Pennsylvania will do all of the heavy lifting of preparing for trial, to make your experience of being on the witness stand much easier than you might think.
What should I do before I go to court for my hearing? Make sure your lawyer knows the “bad stuff” as well as the good. Your lawyer wasn’t behind your closed doors any more than was the judge, and knows only what you have told him and what he was able to learn. As a Pittsburgh family law attorney, I need to know everything about your case and not just the facts that make my own client look good. Nobody walks into a courtroom with a perfect case, and it is always better for your lawyer to learn the weaknesses of your case across a desk rather than across the courtroom; that will let your attorney take everything into account when structuring his presentation. It can be very, very hard to tell your lawyer about choices and actions that don’t belong on the list of your finest moments, but sometimes your willingness to do so can make all the difference.
Follow your lawyer’s advice. Your lawyer may have given you information and suggestions to help both of you prepare for trial, such as organizing information and documents, and providing them to him early enough to incorporate them into his presentation. Life has plenty of distractions and sudden priorities, and it is dangerously easy to put off that kind of preparation until days turn into weeks, and time runs out. Make preparation a priority. You will not only make your lawyer more effective on your behalf, you’ll probably save yourself some legal fees by doing it; the more organized you are, the less organized you need to pay your lawyer to become.
Make double-sure that the information you give lawyer is complete and accurate!I once had a client who was suing his ex to modify his child support obligation, but who was too busy to get me current pay stubs. He assured me, though, that as a salaried employee his income had changed not at all after the most recent documentation I had. At the hearing I told the court what he had told me, he agreed under oath that the information I provided on his behalf was correct, and everything was going just fine right up to the point where his ex’s lawyer asked him, “Have you received any bonus income after the date of these pay stubs?” “Yes,” he said. Surprise! He had received an annual bonus of almost $40,000 that I knew nothing about. After that, the hearing officer was less inclined to believe my client about anything he said. He may never have intended to mislead the court – he didn’t lie about the bonus when opposing counsel happened to ask the right question – but his choices hurt him all the same. Don’t decide what your lawyer needs to know; instead, give your lawyer everything and let him decide.
Get your lawyer any necessary documents as early as possible. If an important document isn’t in the courtroom at the time of the hearing, it may as well not exist. I cannot tell you how many witnesses I have interviewed over the years, who answered my question about whether they had evidence to back up their claims with something like, “I’ve got plenty of proof at home. I can show it to you anytime you like.” Any time except right now, that is. Don’t count on “do overs.” Either you have what you need when you need it, or you do without it.
Prepare. Your lawyer should review your testimony with you in advance, to minimize surprises for both of you. You should take the time to review, with your lawyer or alone, the documents that will be presented into evidence on your behalf, and the facts that the court will need to know to be able to find in your favor. If you are going to court for a child custody case, make sure that you can speak knowledgeably about the “basics” such as each child’s educational history and medical needs. If you will be at a trial for equitable distribution of marital property, review and update yourself about the marital estate and its value. Your lawyer can help you direct and focus your efforts for maximum benefit, so that necessary information is fresh in your mind when you sit in the witness chair. You don’t have to memorize anything, but refreshing your memory in advance is never a bad thing.
Get enough sleep the night before. This may be too much to ask, but try anyway. Your stress level is probably high enough, as it is. Do yourself a favor and get some rest.
Dress well. Leave your ripped jeans and your “Only God can judge me” T-shirt at home. A neat appearance matters, in that it shows respect for the court. I usually tell my clients, “dress for the office.” Men, you don’t have to wear a suit and tie (not that it hurts), but a collared shirt is certainly a plus. Ladies, wear something with sleeves that isn’t skin-tight.
Make sure your telephone will not ring, buzz, chirp or sing. Don’t make the judge angry. You wouldn’t like him when he’s angry.
What do I have to worry about at my hearing? Mostly, you need to worry about yourself. Your lawyer is there to take care of the rest, and by the time you reach the courtroom he will have given you a good idea about what to expect. When you are not testifying you are quiet, respectful and attentive. When you are testifying you are calm, candid and sincere.
You will find your worst enemy in any mirror. You are angry, frustrated or nervous, or – more likely – some combination of all three. I remember one client of mine who just would not sit still or stay quiet in court. As she listened to her former husband’s testimony and knew he was lying, she offered a continuous stream of gasps, tongue-clicking and facial expressions of wide-eyed disbelief. My efforts to calm and quiet her made no impact until the judge turned our way and shouted, “Can the cheap theatrics!” This is not the kind of attention you want from your judge.
Assume that your judge has a working brain. One of the hardest-won skills of any lawyer handling divorce and other family law matters is to know when to shut up and leave the rest to the judge. When I served on arbitration panels for civil cases many years ago, there were times when I wanted to reach across the table to grab a lawyer by his tie, haul him close, and say, “I got your point five minutes ago. Why don’t you pretend that I have a brain, and move on?” I practiced before an Allegheny County hearing officer on many occasions who must have had the smartest pet in the world, because whenever I tried to belabor a point in front of her she would say, “My cat knows that.” Sometimes, more is better; at other times, more is just… more.
The judge doesn’t need to know everything about everything. In Pennsylvania family law cases, there is usually no “magic bullet” that will determine the outcome of a case. Usually, the judge will form opinions based on the accumulated weight of evidence, and in court you always lead with your strongest arguments, and might not even need the rest. This means that you will probably leave the courtroom with any number of things left unsaid, wondering whether any one of them might have made a difference; but the answer is usually, “no.” I usually compare giving evidence in a courtroom to filling a bucket with water; there comes a point at which either the bucket is full, or you realize that the bucket can never be filled because there is a hole in it. Either way, you stop pouring at that point if you don’t want to make a mess.
The “moving party” will usually go first. The “moving party” is the one who made the request that led to the hearing being scheduled. This person is also sometimes called the “movant” or the “petitioner,” and the other party is the “respondent.” Generally, the moving party will present his or her case completely (including all witnesses and all documentary exhibits) before it will be the respondent’s turn.
Direct examination is more friendly than cross-examination.When you are called to testify, your lawyer will have questions for you to answer; this is called “direct examination.” In some court systems such as in Allegheny County, part direct examination might also be presented by your lawyer in the form of a summary. Direct examination is very open-ended, with questions that call for narrative responses. When that is done, your ex’s lawyer will be able to ask you questions on cross-examination, many of which will be highly leading, and which are intended to bring out weaknesses in your case and other “bad stuff.” If your lawyer considers it necessary, he can ask you additional questions afterward (called “redirect examination”) to give you an opportunity to flesh out or to explain some of the answers you gave during cross-examination.
Take a breath, take a moment. Remember those words, say them to yourself when the experience starts to overwhelm you; they might just help you get you through it.
When you arrive at family court for your trial. You’re in the spotlight right away. Consider how you size someone up, the moment you meet him. This person may not have said a word to you, yet, but already you’re making decisions about whether he can be trusted, whether his motives are genuine, and whether you can relax around him. We communicate in all sorts of ways, besides speech: posture, facial expression, body movements, and more. Even when it is not your turn to speak, you are “on camera” as long as you are in the judge’s field of vision, and despite the judge’s experience and responsibilities he is as human as you are. Count on this, and give the judge what he wants to see: respectful attentiveness and a clear understanding of what you learned back in elementary school: don’t speak when it is not your turn.
Be calm and focused.You don’t have to be made of stone, and you don’t have to pretend that you have no emotions, but it is the rare judge whom you will impress with your passion, rather than with your willingness to be reasonable under difficult personal circumstances. The judge already knows that you’re not having your best day. Best days are seldom had in courtrooms!
Forget every courtroom drama you ever saw. Your hearing will be an orderly process of fact-finding, and you can count on it being limited to the specific set of questions the family court has been asked to answer, and to the particular issues that the court has been asked to decide. The real world, where everything is connected to everything else, stops at the courtroom door; you may already have learned that the system is highly compartmentalized, and that despite the devastatingly-high importance of the matters under discussion before the judge, hearings are actually pretty boring overall. It has to be that way, if the judge – an outsider to your life – is to be able to look at your case with an objective eye and to make a well-informed and just decision.
Look at your case through the judge’s eyes. You can only help yourself by trying to see your case the way the judge does. He starts out not knowing you and your ex from Adam and Eve, and his priorities may be very different from yours. You must get away from thinking in terms of good guys and bad guys, with yourself pre-cast as the wounded hero – and that may be the hardest thing of all – lest you risk setting yourself up for failure before you have even begun. Just like the old song says, your judge is going to assume that “There ain’t no good guys, there ain’t no bad guys. There’s only you and me, and we just disagree.”
When someone else is giving testimony (yes, including your ex!). You have to sit there and take it.You are sitting at a table next to your lawyer, remembering what you read in that article online about being respectful and attentive. Meanwhile, your lawyer is giving a close ear to what the witness is saying, and is probably taking notes to prepare for cross-examination. This may be the hardest part for you to handle, because you have to sit there and take it.
I’m going to say that again, because it matters: you have to sit there and take it. Silently. Calmly.
Resist the temptation to interrupt. Words will bubble up into your mouth, aching for release: “That’s not true, Your Honor. Can I tell you what really happened?” Or, “He told me something different before he stole my phone and deleted the texts.” Or, “I never said that!” Or… the list goes on. It’s not your turn to talk, so you have to sit there and take it. Either you have already had your turn, or you are going to have it. Everybody gets to have a say, for good or ill, and with the possible exception of objections (from your lawyer, but never from you!) the judge is going to want to hear it all, without interruption.
Communicate with your lawyer. You certainly can (and probably, should) bring problematic testimony to your lawyer’s attention. I always provide my clients with paper and pen for exactly that purpose, so that we can communicate freely. I prefer communicating in writing with a client during trial, because I am listening carefully to what the witness is saying. If you whisper in my ear while that is going on then I’m listening to you instead of to the witness, and that means that I might miss something important. I tell clients that while I cannot guarantee that I will be able to use everything you tell me, I would rather have ten notes from you I don’t need, than miss the one that might have made all the difference.
Here we go: it’s time for you to take the witness stand. Take heart and stay focused. It’s time. Your name is called, and you make your way to the “hot seat.” It’s okay to be nervous; usually, that just means that you’re paying attention. If you find yourself getting too nervous, catch your lawyer’s eye and borrow some of his confidence. You brought backup… use it! The courtroom might as well be your lawyer’s satellite office. While your lawyer can never guarantee an outcome, he can certainly promise you at least one cool head in your corner.
This is a test you cannot fail. All you have to do is to answer questions, and the only questions you have to answer are the ones you can answer. If you are able to respond at all, the answer might as well be engraved on your bones. This is about the life you have been living day by day: your experiences, your choices, your understandings. This is about your children’s needs. This is about what you earn, or what you own. The truth tells itself.
Answer the questions. No matter who is asking you a question, whether it is your lawyer, your ex’s lawyer or the judge, the rule is the same: answer politely and in your own words. Answer truthfully. Answer completely. Answer, and then stop. All you have to do is to answer one question at a time, not to write a book. If more information is needed, another question can be asked. All you need to worry about is answering one question at a time.
You are always talking to the judge.No matter who is asking questions, you are always speaking for the benefit of the court. “That’s none of your business” is never the right answer (and yes, this has happened). “Do I have to answer that?” is never the right answer (that has happened, too). Play it straight, speak clearly and audibly, and be sure to pace yourself. Your words are being recorded either by a court reporter or an audio system, and everyone in the courtroom needs to hear and understand what you are saying. The judge may have questions to ask you, too. This is no bad thing, because it means that your judge is interested and engaged, and is taking what you say seriously. Don’t worry about what you think the judge wants to hear, or what he might be looking for. Don’t try to convince the judge of anything. Just consider the question you have been asked, and answer it truthfully.
Face the difficult questions head-on. “I don’t know” is a perfectly acceptable answer, if true. “I don’t remember” is equally acceptable, if true. “I don’t understand the question” is fine, as long as you are not playing games. Don’t play games. Don’t split hairs. Listen carefully and be sure to answer the question you were actually asked, and not the one you wish you had been asked. You aren’t running for political office today, so don’t try to evade questions. If the answer you want to give resembles, “I don’t know how to multiply twelve times seventeen, but I can spell Mississippi!” think again before you speak. Your judge has a brain that works just fine, and it’s not hard for anyone to tell when (and why) someone is trying to avoid a question. Don’t be that someone.
Don’t worry whether your case is strong enough.That decision is behind you, and it led you to this moment. Win, lose or draw, now is not the time for hesitation or doubt! Now is the time to follow through, like the arrow in flight: the aiming has already been done, the target already has been selected, and all the arrow has to do is to go straight forward. Also, nobody walks into the courtroom with a perfect case, no matter how strong it seems — not you, and not your ex — and the good news is that your case doesn’t have to be perfect. Your judge is trying to decide how best to handle your situation, not to rule on your candidacy for sainthood. This means that you don’t need a halo, just an honest and forthright approach to the questions you are asked.
No backtalk to your ex’s lawyer. You are in the midst of what might be a painful or difficult emotional experience today, and you are not going to be at your best. Some lawyers will try to rattle you, scorn you or rile you up enough to make yourself look bad. If your ex’s lawyer thinks he can rattle you into losing your temper or overwhelm you into shutting down, count on it happening. Think of it as bait on a hook, and avoid swallowing it. Don’t try to trade fire for fire with your ex’s attorney, or get into an argument with him, because sometimes the best defense is not a good offense. This isn’t his first rodeo; he’s ready for you to try to strike back, and in no event will bravado impress the judge. Your job today is only to answer questions, and not to ask them. Stay polite. Stay reasonable. Take a breath, take a moment. Your judge isn’t deaf or stupid, and the straighter you play it the less likely you are to be led into trouble in the difficult moments. The judge is the only person in the courtroom whose opinion really matters, so don’t let yourself get rattled into making false statements, or into agreeing with statements you know to be incorrect. You will get through this.
Your ex’s divorce lawyer just asked you the question you’ve been dreading.There may indeed be questions that you are dreading, and answers that you are not proud of, but give them anyway. When the answer to a question hurts like hell, remain truthful without flinching. All of us have lived moments and situations that inspire our guilt or shame — especially in the midst of a crumbling relationship — and your lawyer probably can’t protect you from questions that call for relevant information that the court might find useful. Since you can’t change the facts, and since trying to dance around a damaging truth will just make it worse, bite the bullet and play it straight. I present my family law cases “warts and all” because anything else will send the wrong message to the court when the damaging information comes out, anyway. If your lawyer considers it necessary, he can make sure that you get a chance to explain yourself more fully, later on. Meanwhile, take heart from knowing that the judge is not looking for an opportunity to hang somebody from the nearest branch; instead, he is trying to understand the whole situation so that he can offer the fairest and least-destructive solution to the problem placed before him. Your judge has seen it all, probably three times before breakfast, and judges can practically smell it when someone is trying to avoid a question; don’t test him. Check out David Letterman doing it right.Check out former President Clinton doing it wrong.
Sit still and make eye contact. Your parents told you that sort of thing when you were a child, and your lawyer is telling it to you now. You don’t have to be made of wood or stone, but overall it is a good idea to keep yourself reasonably still both on and off of the witness stand, and to make eye contact with whomever you are speaking to. When a witness fidgets and avoids people’s eyes while giving testimony, it sends the wrong message to the judge.
Treat “Objection!” like a pause button and stop talking.Sometimes, a lawyer will object to a question that you are asked. This is like a “time out” at a sporting event; the game suddenly comes to a halt, and the referees have to talk before the play can resume. When you hear an objection, stop talking and wait for the judge to rule on it. If the objection is sustained you don’t have to answer the question. If it is overruled, go ahead and answer as if nothing had happened. Unless you are representing yourself in court, leave objections to your lawyer and don’t try to make any, yourself.
Your testimony needs to be from your own personal knowledge. “Hearsay” is when you are speaking with somebody else’s words: “Joe told me that he saw my wife kissing some guy at a bar,” or “The doctor said that I’m not going to be able to go back to work until after I’ve had surgery.” Ordinarily, “Joe” and “the doctor” would need to be the ones on the witness stand to allow that testimony to be introduced; your own testimony will usually be limited to what you, yourself, have personally seen, heard and done. There are exceptions; you can always testify about what your ex may have said, for example, and you can testify about what you know, and how you know it.
The takeaway. When you are on the witness stand, don’t try to be anybody but yourself. Listen carefully, answer truthfully, and sit respectfully. The rest is up to your lawyer, and to the judge.
If you need legal assistance with your divorce or child custody case in the greater Pittsburgh area, call our office to set up a personal consultation with a Pittsburgh divorce lawyer and to learn more about Pennsylvania family court affects you. Please do not comment anonymously, and do not post anything that you consider confidential. We try to be responsive to commentary and questions, but know that posting here will not create an attorney/client relationship and that we will not offer legal advice via the Internet.
“Anybody who thinks talk is cheap should get some legal advice.”
– Franklin P. Jones
What is a retainer?
Even if you have never before spoken with a lawyer or seen the inside of a courtroom, you have probably heard that lawyers collect “retainers” as payment for their professional services. If you think you will need to work with a family law attorney, it may help you to know what lawyer retainers are, and how this unique sort of business arrangement actually works.
Although lawyers in some areas of practice are only paid if there is a financial recovery for the client, lawyers in other fields (including family law practice attorneys like me) charge for the time they actually spend working on your case. The only way that I can guarantee being paid for the work that you ask me to do is to collect a “retainer,” which is an agreed-upon amount of your money that I put in reserve to pay for the work you require. I use the money in your retainer fund to pay your invoice for you each month. A retainer needs to be large enough at least to cover anticipated work and expenses to the end of each billing period. In my Pittsburgh family law office, the billing period is a single calendar month.
Why do lawyers charge retainers?
Lawyers expect to be paid for their time and professional services, just like anybody else who works for a living. While I do my best to work with people facing difficult financial circumstances, it would be business suicide to take my clients’ financial problems onto my own shoulders. The family lawyer who turns himself into a living credit card will have as many clients as he likes until the lights go out and the heat shuts off, because promises don’t spend when the time comes for him to pay his own bills.
A retainer is not just a guarantee that I will get paid for my work, it is also my assurance that you will take your case as seriously as you should. There are plenty of ways to get more “bang” for your legal buck and to keep the cost of your litigation manageable, but the best outcomes for your family law case usually do not come from indiscriminate fighting. In my experience, the clients who want their family lawyers to run a tab for them are often the same ones who expect their lawyers to attack, attack and attack.
How is a lawyer’s retainer different than a legal fee?
Usually, a lawyer’s retainer and a lawyer’s fee are two different things. A lawyer’s fee is what he charges for the services you are asking him to perform, usually identified in a fee agreement that states how much you agree to pay the lawyer for each hour of his time. The retainer is the money set aside to pay that fee as the lawyer earns it, and unless the fee agreement says that no further payment will be due – and always read a fee agreement carefully before you sign! – you can expect to be responsible for replenishing the retainer balance so that the lawyer never works himself “into the red” on your case.
How do lawyers calculate retainers?
Since the object of the lawyer’s retainer is to make sure that money is put aside to pay for services to be rendered, some retainers will be larger than others because some cases require more work than others. If I know that I need to “hit the ground running” for you by drafting multiple documents and by appearing in court several times in the near future, I am more likely to charge a higher initial retainer than if your case is likely to begin with casual exchanges of correspondence and documents as we try to resolve issues through negotiation before anything much happens in court.
If I know that my opposing counsel will be somebody who loves an angry client and likes to litigate every last little thing (and sadly, there are lawyers like that out there!), odds are I will charge my client a higher retainer than if I know my opposing counsel shoots straight and will work with me either to negotiate a fair outcome, or at least to minimize the number of issues over which we are actually fighting.
What do lawyers do with retainers?
The Pennsylvania Rules of Professional Conduct for lawyers require us to maintain a trust account that is separate from our general operating funds, into which we deposit funds that do not (or do not yet) belong to us.
Will lawyers take payments instead of a retainer?
Many years ago I added up what non-paying clients owed me, and realized that if they all paid their debts at once I could live very nicely for a whole year of leisure. After that, I decided that working for “payments” was all-too-often the same thing as working for free. Who can afford to do that for any length of time and expect to stay in business?
Lawyers have families to support and bills to pay, just like you do. Don’t expect any of them to extend you credit without very good reason, or without some form of security in return. We know perfectly well (from bitter experience) that people who have to choose between paying for something they need now, or paying for something they have already received, will choose the current expense every single time. Wouldn’t you?
Can I make my ex pay my lawyer?
Family courts in Pennsylvania will sometimes award attorney fees, but it is not as common as some might wish and you must never depend on getting them. Whenever a family law attorney is pursuing counsel fees for a client, the odds are strong that he is going after them to get his client reimbursed, rather than working to get paid at all.
Never expect your divorce lawyer to gamble with his fee, or to take somebody else’s risks. The best family lawyers will make sure that you have the opportunity to choose for yourself the chances you will take in your case, and they will also help you to understand the possible consequences of those choices, but they cannot take those chances for you. The reason is simple: this is your case, and not your lawyer’s. You brought your attorney in to guide you and to stand up for you, and if he does his job properly he will give you the very best opportunity to protect your rights and to claim what is yours. Your lawyer can never control the result of his efforts, however, because only the judge can do that; and if your lawyer is ever foolish enough to guarantee anything at all about the outcome of your case, be sure to get that guarantee in writing.
Your lawyer will refuse to put your risks onto his own shoulders. It has nothing at all to do with whether he “believes” in your case; it’s just that he believes in making a living, too.
If you need legal assistance with your divorce or family law matter in Southwestern Pennsylvania, call my law office to set up a personal consultation with a Pittsburgh family law attorney, and to learn more about what to expect in Pennsylvania family court. Please do not comment anonymously, and do not post anything that you consider confidential. We try to be responsive to commentary and questions, but know that posting here will not create an attorney/client relationship and that we will not offer legal advice via the Internet.
One of the most common questions clients ask me is “Who will get what out of the divorce?” immediately followed by, “Do I have to give my spouse anything?” My answer usually begins with the phrase that clients hate most: “Well, it depends…” Every divorce in Pennsylvania is different when it comes to property distribution, and the particular facts of your situation can make a tremendous difference in the outcome.
Once upon a time, a group of people from a mighty civilization found themselves united in spirit by a shared compassion over the plight of those who were less fortunate than themselves. Knowing well that most things only change when somebody changes them, they resolved to travel together to a faraway farming village – the first of many, they hoped – to educate the people there in modern agricultural methods that would certainly improve their lives. They made their plans, gathered their supplies and their courage, and set off. Along their travel they often discussed eagerly the grand welcome they would receive upon arriving, and the celebration of a grateful community after the first fruits of their mighty gift became ripe for the harvest.
