What happens if me and my spouse can not agree?

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What happens if me and my spouse can not agree?

Post  Admin on Mon Sep 21, 2009 12:30 pm

Once a divorce, legal separation, or annulment has been filed and the other spouse files a response the case is now considered contested. If contested a case may end by settlement or trial in most situations.

Settlement

Many domestic relations cases in Arizona settle out of court. The parties are often able to reach an agreement on all issues which eliminates the need to go to trial. When a settlement is reached, its terms are often set forth in a Marital Settlement Agreement which is a contract between the divorcing spouses concerning all issues. Both parties must sign a Marital Settlement Agreement before submitting it to the court along with a decree of divorce for the judge to sign. So long as the agreement is fair and equitable and addresses all of the issues that exist between the parties, the court will usually adopt its terms as part of the decree.


Discovery

If a settlement cannot be reached, it may be necessary to move your case toward trial. Before your case is ready to be tried, it may be advisable to engage in discovery. Discovery is the procedure available to both parties to determine what each party wants and the evidence they have to support their claims. Arizona has a disclosure requirement for all parties involved in contested litigation. Each side must disclose, in writing to the other the factual and legal basis for their claims and defenses. The parties are also required to identify all witnesses and exchange any documents they intend to introduce as exhibits at the time of Mal. Failure to fully disclose may result in the inability to introduce evidence which should have been disclosed.

There are several discovery tools available to each side. The most common ones are written interrogatories, oral depositions, requests for production of documents and requests for admissions. Written interrogatories consist of questions posed to the other party to discovery helpful information such as the identity and value of assets and debts. A deposition is an opportunity for a party to ask spontaneous questions to the opposing party. Although the spouse who is being deposed has the right to have their attorney present, they cannot coach their client or unduly interfere with the questioning process. A deposition is also valuable to "lock-in" the testimony of a party. Since the answers given at a deposition are under oath, they cannot be changed at the time of trial unless there is a good explanation for doing so. Without good cause for a different answer at the time of trial, a party who changes his or her testimony will have their credibility impeached which could adversely reflect upon their overall believability to the judge.


Trial

The court does not automatically assign a trial date to your case. One or both of the parties must file a document with the clerk requesting the court to schedule a trial date. Trial dates are typically assigned based on the amount of time that is estimated as necessary to try the case. Most routine divorce cases can be tried in a day or less. More complex cases involving a lot of assets or a hotly contested child custody case, may take two or more days to try.

At trial the Petitioner has the burden of going forward which means that the spouse who filed the Petition goes first. The Petitioner has the burden of proving his or her claims while the Respondent has a similar burden with respect to his or her claims. Generally, the burden of proof which a party must meet is a preponderance of evidence. This means that the weight or credibility to support a factual finding is greater than the evidence opposing it. The Respondent may also have the burden of providing evidence which either contradicts or disproves the Petitioner's case while the Petitioner may be given the opportunity to introduce evidence which rebuts the Respondent's case. Each side has the right to object to the introduction of evidence if it does not satisfy the complex rules which define what is and is not admissible. The court must rule on all objections so that a record of the trial proceedings is made in the event of an appeal.

The Petitioner presents his or her evidence first. Evidence consists of witness testimony, documents, charts, photographs or any other tangible thing which tends to prove the existence of a fact that is essential to the success of the Petitioner's case. Each of the Petitioner's witnesses may be cross examined by the Respondent. The purpose of cross examination is primarily to test the truthfulness and reliability of the evidence introduced by the opposing party. The Petitioner's attorney is also provided an opportunity to cross examine the Respondent's witnesses during the Respondent's phase of the trial.

After the Petitioner rests, the Respondent may introduce evidence in the same way that the Petitioner did. Following cross examination of each witness by the Petitioner, the Respondent will eventually rest at which time the court may ask for closing arguments from each party.

Closing arguments are intended to help gather all of the admitted evidence into a cohesive whole in order to help the judge decide the case. This is also the time for each party to offer persuasive arguments on any important points of law which might help the judge make a decision. During closing remarks, the judge will often question each party about points of law which should be answered directly and candidly by each party.

After closing arguments, the case is submitted to the judge for a decision. Except in very simple cases with few issues, most judges will take a case under submission or advisement which means they will take the exhibits and other evidence back into chambers for further review and consideration before rendering a judgment. Most submitted cases are decided within just a few days although by law, a judge has up to 100 days to make a ruling.

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