Dannenbaum Law Firm, PLLC

The use of witnesses in your divorce case

You are separated and leading to a divorce. You must begin to build a case for custody and financial issues. One thing you need to think about are persons that could testify in court on your behalf to support your case.

Start thinking about persons who have personally witnessed, have personal knowledge (things they have actually witnessed and seen), or have communicated with your spouse. These people are called One witness is called a "fact witness." A fact witness is someone who has personal knowledge of the facts, events, circumstances, and character of the parties relating to the case. Fact witnesses can testify only to what they personally observed or what they heard the other party say or what other communications (oral or written) with the other party. Fact witnesses cannot testify to their opinions or conclusions. But the fact witness by testifying to what they observed or heard can help the judge reach conclusions Fact witnesses are important to your case because they can corroborate and add details as to the facts of the case. For example, if your spouse screamed, cursed, and used corporal punishment on your child, a person who observed this event would be a good factual witness on custody. A live in nanny who witnessed your spouse come home from work and go right to bed without having any contact with your kids, could testify to what she saw. If your spouse told someone that he had a secret bank account worth one million dollars, the hearer of this statement would be a good witness on the financial issues in your case.

It is important to think about any possible fact witnesses. You can ask these fact witnesses to write a narrative of everything they saw and heard. You can ask the fact witness to sign an affidavit of what he or she saw and heard. Although the affidavit itself cannot be admitted in court as evidence, the affidavit can be used if the witness gets cold feet of forgets on the witness stand and does not testify to what he or she wrote in the affidavit.

Early in you case, you should give your lawyer a list of the potential fact witnesses and a summary of their knowledge. Your lawyer can then interview these people. This will help your lawyer develop evidence and learn more about your case. Any communications between your lawyer and a potential witness are not covered by the attorney client privilege and so may be subject to the other side learning of the communications. The attorney-client privilege prevents people from revealing confidential communications between the client and their lawyer.

The key take away is that you need to start preparing for your case from day one. While you and your spouse may want to avoid a court hearing-and hopefully you will--it is still important to gather evidence from day one-including determining persons with knowledge (family, friends, neighbors, nannies, etc.) so you can use the witness or his or her statements in negotiating a settlement or, if needed, in court.

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