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Posted by eric_k_johnson on September 17, 2011
Hearings in Utah Divorce Actions[1]
Many of you have asked what to expect when the court or your attorney sends you notice of a court hearing in your divorce case.
How long will my hearing be?
The petitioner and the respondent will have about 15 to 20 minutes to explain and argue the case. Your hearing will be scheduled at the same time as many other cases, so that means if your hearing is scheduled for “9:00 a.m.,” that just means you need to be at court at that time, but you may find yourself waiting your turn for an hour or more with everyone else who is scheduled at the same time as your case is called up in the order the court decides to hear the cases.
Can I have a longer hearing?
If you believe that you will need more time and you are willing to wait for a longer hearing, you should ask the clerk to schedule a longer hearing before your judge. A longer hearing is not guaranteed just by asking for it, however.
How do I prepare for my upcoming divorce hearing?
First, when I refer to “the court” that often has the same meaning as “the judge” or “the domestic relations commissioner.”
Second, divorce cases may be assigned to a judge or to a “domestic relations commissioner” in cities with large populations, such as Salt Lake, Provo, Farmington, and Ogden. A domestic relations commissioner is a “quasi-judicial officer” established by the Utah Code. Domestic relations commissioners can exercise some powers of a judge, but not all.[2] Once of the things commissioners can do is hold hearings in divorce cases.
Third, understanding the difference between evidentiary hearings and hearings by proffer. Frankly, I did not understand the difference until several months after I was a brand new attorney, so if you are not a lawyer and confused, you’re in good company.
An evidentiary hearing simply means that it is a hearing in which the court hears evidence. Hearing evidence simply means that the parties call witnesses (including themselves, if they want) and present evidence (such as photographs, income records such as tax returns and pay stubs, medical reports, and other documents). An evidentiary hearing is essentially indistinguishable from a trial you see on TV—lawyers make opening statements, arguments, question witnesses, and move for the admission of evidence for the court to consider before deciding who wins the argument.
Most divorce hearings are not evidentiary hearings, which is a shame because as you can imagine, evidentiary hearings are designed to be the most thorough and informative for the court. The better informed the court is, the more likely the court’s decision will be the right one.
Most divorce hearings are proffer hearings. The justification given for proffer hearings is that they are much quicker to conduct than an evidentiary hearing. Why are they so much quicker? Well, “to proffer” in this sense means to offer evidence for admission without actually laying a formal foundation that supports the truthfulness of the evidence one proffers. That means that no witnesses are sworn in to testify. Few to no foundations are laid for the admission of documentary evidence—you just show the court the photo or note and ask the court to consider it.
Otherwise (and cynically) stated, proceeding by proffer allows litigants to lie through their teeth with substantially reduced of being caught compared to an evidentiary hearing. Sure, proffer hearings take much less time than evidentiary hearings, but that’s because virtually all the safeguards an evidentiary hearing has for ensuring the truth is ferreted out are omitted.
Do I have to testify at a proffer hearing?
No, you don’t to testify at a proffer hearing. In fact, testifying is all but forbidden at proffer hearings, so if you were worried about having to testify, you can relax.
How do I prepare for my upcoming divorce hearing?
1. Review your court documents. You should be aware of and review any court documents filed in your case by you and by your spouse.
2. Be sure your spouse was served and has notice of the hearing. That means being sure your spouse was personally served with the paperwork and notified in writing of the hearing date by you or by the court. If your spouse did not receive notice, your hearing may be rescheduled or simply stricken.
3. Know specifically what you want. You and your attorney must take time before you go to your hearing to think through everything you want to say to the court. You will be expected to have your attorney (not yourself) explain to the court what you want and why.
What issues can the court handle in my divorce hearing?
The court may be able to deal with the following issues on a temporary orders basis at your divorce hearing, depending on your circumstances and the documents filed with the court:
- joint vs. sole custody of minor children common to the parties;
- primary physical residence of the children;
- parent-time (formerly known insidiously as “visitation”)
- award of temporary possession and use of jointly owned land, cars, other personal property; jointly owed debts
- child support and/or alimony
Do I need witnesses or proof?
Even for a proffer hearing, if you feel that you need to prove a point in your case, you may need to bring witnesses to the hearing who have personal knowledge, or have personally seen events take place. Really, I’m not kidding. You have to bring the witnesses in to court, even though they will never open their mouths, so that you can prove the witness really exists, and then you simply tell the court a summary of what the witness would say if the witness actually testified.
Attach to your motion any documents, photographs, receipts, bank statements, or other records may be helpful in proving your case.
What should I remember during my hearing?
1. Be specific and clear with your attorney, so that he can be clear with the judge. If you cannot clearly state what you want in your case, the court will never know. Always be specific about times, places, and people whenever possible.
2. Be calm and be respectful of the court. Do not your voice or get into an argument with your spouse during the hearing. The judge will respect you more for remaining calm. Do not interrupt the judge. Speak only when the court first grants permission.
3. Ask questions if you do not understand.
You should never leave a hearing not knowing what happened. If you are confused on any point, the hearing is the time to ask! Misunderstandings are extremely difficult to correct later.
4. Make sure you know what will be written into order from the hearing. If you feel that specific things need to be written into your order, such as a specific parent-time schedule instead of a vague “to be arranged” schedule, you must request that the court write in the specifics. If not, you may be unable to enforce the order in the future.
[1] Adapted from “Without An Attorney: Tips for Making the Most of Your Divorce Hearing,” by Celia Yapita, NAPIL Fellow and Attorney at Three Rivers Legal Services, Inc. http://www.jud3.flcourts.org/FamilyLaw/divorcehearing.pdf
[2] See Utah Code of Judicial Administration, RULE 6-401. (DOMESTIC RELATIONS COMMISSIONERS):
Intent:
To identify the types of cases and matters commissioners are authorized to hear, to identify the types of relief commissioners may recommend and to identify the types of final orders commissioners may issue.
To establish a procedure for judicial review of commissioners’ decisions.
Applicability:
This rule shall govern all domestic relations court commissioners serving in the District Courts.
Statement of the Rule:
(1) Types of cases and matters. All domestic relations matters filed in the district court in counties where court commissioners are appointed and serving, including all divorce, annulment, paternity and spouse abuse matters, orders to show cause, scheduling and settlement conferences, petitions to modify divorce decrees, scheduling conferences, and all other applications for relief, shall be referred to the commissioner upon filing with the clerk of the court unless otherwise ordered by the Presiding Judge of the District.
(2) Authority of court commissioner. Court commissioners shall have the following authority:
(2)(A) Upon notice, require the personal appearance of parties and their counsel;
(2)(B) Require the filing of financial disclosure statements and proposed settlement forms by the parties;
(2)(C) Obtain child custody evaluations from the Division of Family Services or through the private sector;
(2)(D) Make recommendations to the court regarding any issue, including a recommendation for entry of final judgment, in domestic relations or spouse abuse cases at any stage of the proceedings;
(2)(E) Require counsel to file with the initial or responsive pleading, a certificate based upon the facts available at that time, stating whether there is a legal action pending or previously adjudicated in a district or juvenile court of any state regarding the minor child(ren) in the current case;
(2)(F) At the commissioner’s discretion, and after notice to all parties or their counsel, conduct evidentiary hearings consistent with paragraph (3)(C) below;
(2)(G) Impose sanctions against any party who fails to comply with the commissioner’s requirements of attendance or production of discovery;
(2)(H) Impose sanctions for contempt of court;
(2)(I) Issue temporary or ex parte orders;
(2)(J) Conduct settlement conferences with the parties and their counsel in a domestic relations case. Issues that cannot be settled shall be certified to the district court for trial; and
(2)(K) Conduct pretrial conferences with the parties and their counsel on all domestic relations matters unless otherwise ordered by the presiding judge. The commissioner shall make recommendations on all issues under consideration at the pretrial and submit those recommendations to the district court.
(3) Duties of court commissioner. Under the general supervision of the presiding judge, the court commissioner has the following duties prior to any domestic matter being heard by the district court:
(3)(A) Review all pleadings in each case;
(3)(B) Certify those cases directly to the district court that appear to require a hearing before the district court judge;
(3)(C) Except in cases previously certified to the district court, conduct hearings with parties and their counsel for the purpose of submitting recommendations to the parties and the court;
(3)(D) Coordinate information with the juvenile court regarding previous or pending proceedings involving children of the parties; and
(3)(E) Refer appropriate cases to mediation programs if available.
(4) Prohibitions.
(4)(A) Commissioners shall not make final adjudications of domestic relations matters.
(4)(B) Commissioners shall not serve as pro tempore judges in any matter, except as provided by Rule of the Supreme Court.
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