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Edra J. Pollin

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My Top Ten List Of What Not To Do In Divorce Court

Posted: 11/21/11 04:15 AM ET

Getting ready for trial in a divorce or child custody case can be a stressful time as litigants and litigators attempt to condense the details and documents of a relationship into the hours or days of a trial. If you're represented by counsel, it is your attorney's job to prepare you for trial and to deliver a concise and convincing presentation of your case to the court. That said, since judicial determinations are often based upon the behavior a party exhibited in the courtroom rather than the exhibits they offered into evidence, please consider the following helpful hints for your day in divorce or custody court:

1. Do not roll your eyes, mutter under your breath or otherwise gesticulate when your spouse is testifying. Although justice may be blind, most judges are not. To the contrary, they are usually astute observers of body language who rarely appreciate one party's use of facial expressions to mock the other spouse's testimony. If your spouse is misrepresenting facts to the court, pass a few brief written comments to your attorney and patiently await their brilliant cross examination.

2. Do not keep referring to your child as "my" son or "my" daughter. More often than not, a parent who consistently uses the singular possessive pronoun with regard to the children is a parent who is singularly possessive about who should raise them.

3. Make sure that you've disclosed relevant and potentially embarrassing personal facts to your attorney early on in the case. Many years ago when I was a public defender, I represented "Jordan" who was charged with driving under the influence of alcohol. At the first office appointment, Jordan provided me with a detailed description of his performance on the roadside sobriety test, but he neglected to mention that when he exited the vehicle he was wearing a "teddy" negligee and a pair of high heels. Although Jordan's was a criminal case which was resolved without a trial, his story bears repeating for divorcing spouses whose personal habits are relevant to their case.

4. Don't bring your entire extended family and ten of your closest friends to your divorce hearing. During a marriage, most spouses would think twice about sharing their income tax returns or the intimate details of their relationship with third parties. When a marriage is ending, some divorcing spouses abandon this rule of privacy and assume that inquiring minds want to know everything about the divorce. If you need a support system to get you through the trial, pick no more than two people to sit quietly in the bleachers of the courtroom.

5. Don't wear your torn blue jeans, your muscle shirt or your mini skirt to divorce court. Strange but true, months of trial preparation can be undone in an instant by a client who is dressed to tease rather than to testify. A provocative outfit may be great for the weekend after your divorce but it's a fashion disaster for your custody case. When you select your courtroom attire, pretend you're heading for a job interview. In some respects, you are.

6. Do not be rendered speechless if you're asked to describe the positive aspects of your spouse's parenting. A child custody case can be won or lost with the single question, "Can you describe some of the positive aspects of your spouse's parenting skills?" On occasion, this question is followed by a pregnant pause as the witness scrambles to identify one favorable aspect of the other party's parenting. If you can't say anything positive about your spouse to the court, you're probably not saying anything positive about your spouse to the kids.

7. Don't display open hostility toward your spouse's attorney. Your spouse's attorney is probably not on your Christmas list. If you're openly hostile toward opposing counsel during your cross-examination, you're probably scoring more points for the other team than for yours. Keeping your cool on the witness stand is a great way of saying that you have nothing to hide.

8. Don't read or receive text messages during the hearing. If you want the Court to pay full attention to the testimony, make sure that you do the same.

9. In a child custody dispute, don't keep talking about "your" needs and "your" desires. Custody cases are determined based upon "the best interests of the child". At trial, it is a safe assumption that the court doesn't particularly care about you or your spouse, but the court cares deeply about the child(ren) you have created together.

10. Don't tell long winded stories with irrelevant details of your spousal disputes. In divorce court, most judges have full dockets, sore backs and a desire to make it to lunchtime without an emergency hearing. If you're asking the court for a protection order, describe the alleged spousal abuse and avoid the temptation to explain the minute details of the domestic dispute which precipitated the abuse.

Hopefully, my top ten tips will improve your odds at trial although there are no guarantees of success in the world of litigation. Ignore them if you wish but you just might end up seeking out another top ten list entitled, "Top Ten Local Lawyers To File An Appeal."