Nolo's Essential Guide to Divorce - Emily Doskow [60]
Witness Lists
One of the things your lawyer will find out before trial is who your spouse's witnesses are going to be. Your lawyer may then ask you for whatever information you have about these people, including negative things that will help your lawyer try to discredit them. Some of these witnesses may be people you considered your friends at one time, so the idea of letting your lawyer attack them because you once saw them lose control and smack their kid may be pretty distasteful to you.
You are in the driver's seat on this. You'll have to listen to your conscience and your lawyer's advice-and if they conflict, you'll have to make some difficult decisions.
Evidence of Fault and Other Wrongdoing
If you live in one of the few states where proof of one spouse's adultery or other bad behavior works to the other's advantage in a dispute over property or support, your trial might include such evidence. (There's a list of these states in "Is Fault a Factor?" above.) And if you're in a contested custody case and you have strong suspicions about your spouse's parenting (for example, that your spouse leaves the kids with a caregiver most of the time, or neglects or abuses them), you need to gather evidence to document your concerns and support the position you're going to take in court.
Under no circumstances should you ever use your children to get information about your spouse. If you must look for evidence, talk to your lawyer about hiring a reputable private investigator who is licensed, bonded, insured, and experienced. Be clear with the investigator about what kind of information you want and how many hours you are willing to authorize. Don't be a do-it-yourself investigator-there are laws, which vary from state to state, about recording phone conversations or photographing people without their consent, and you don't want to run afoul of the law this way.
Settle, Settle, Settle!
As you prepare for trial, you will have a number of opportunities to settle. You might think that if you haven't settled yet, it's not going to happen now. Nothing could be further from the truth. Over 90% of court cases settle before trial begins. The closer it gets to trial, the more motivated you and your spouse should be to avoid spending the money and time that a trial demands and exposing yourself to the uncertainty it brings.
Even if you and your spouse can't stop fighting about property or support, put everything you have into avoiding a custody trial. There is nothing more damaging to your children's chances of recovering emotionally from the divorce. There's extensive information in Chapter 7 about custody evaluations and your kids' relationship with the court system if you are in a custody fight.
Chances to settle may present themselves in a couple of different ways.
Negotiating Along the Way: Written Settlement Offers
As you move toward your trial date, your spouse's lawyer may write to your lawyer with a settlement proposal. (Of course, you can also ask your lawyer to propose settlement terms as well.) If you've tried to negotiate before, the new proposal will probably take into account the sticking points in the earlier conversations, and either come at them differently or concede a point or two.
Always look over a settlement proposal carefully to see what is new, whether your spouse's priorities have shifted, and whether there's additional information that changes your perspective. Discuss every offer with your attorney, even if it seems certain you won't take it. Talking may generate new ideas for a counterproposal.
Your lawyer cannot accept or reject a settlement offer without your say-so. Make sure your lawyer knows that you want to be made aware of every settlement proposal that comes in, even if it looks like you won't take it. You are the boss, and if you decide that the new terms that your spouse is proposing