Services: Domestic Violence: Resource Manual - Divorce (Section 10, Part 3)

How to Prepare for a Hearing or Trial

Do you need a lawyer?

Preparing for and participating at a trial or hearing can be a complicated process: this memorandum gives a few suggestions but it cannot begin to describe all of the rules and procedures you are required to follow in court. If you can afford to have a lawyer represent you, you should get one. The Nevada State Bar Association sponsors a Lawyer Referral Service that may be reached at 382-0504, or you may look in the yellow pages, under "Attorneys". It is also a good idea to ask friends or relatives for their recommendation on attorneys. Another possibility is to pay an attorney for a consultation about your hearing or trial, or to hire a lawyer just to appear with you at the hearing or trial. This type of limited representation is referred to as an "unbundled legal service". The Family Court Self-Help Center has binders that contain information on attorneys who practice family law in Clark County. The information pages also indicate which attorneys offer "unbundled services", take credit cards, or accept payment plans, etc.

Hearings are used to determine temporary or procedural matters. Generally, witnesses are not presented at hearings; instead, the court relies on written affidavits and "oral" argument made by the parties at the hearing. At trial, both parties present witnesses and other evidence for the judge to use in making a final decision on the case

Finding out who the other party will use as witnesses.

The best way to find out what witnesses the other side will call is to ask! In Clark County, both parties are required to file a Rule 16.1 Early Case Conference Report. The Report identifies the witnesses each party intends to call, by name, address and a brief description of the likely testimony of each witness. If you have provided your list of witnesses to the other side but have not received a witness list from the other side in return, you should write a letter to the other party before trial, requesting his/her witness list. If they never give you a witness list, then at the time of trial you can show the judge your copy of the letter requesting a witness list, explain that the other side never identified witnesses in the Early Case Conference Report or responded to your letter requesting identification of witnesses and ask the judge to deny the other side the right to call any witnesses at all.

Witnesses you might want to use.

On issues of contested custody or visitation, one of your witnesses could be the mediator (from Family Court services) or the CASA representative (sometimes called the "guardian ad litem") who investigated the case as well as any counselors who have treated the children or CPS workers who will support your case. You should only call these people as witnesses after you have talked to them and you feel comfortable that they will tell the court what is helpful to your case. You will also be a witness to your side of the case.

Other useful witnesses are people who are familiar with your care of the children and, if possible, the other parent's care of the children. These people might be schoolteachers, childcare workers or neighbors. Friends and relatives can also be good witnesses, but keep in mind that the court might expect your friends and relatives to support your story and discount their testimony.

To be sure that your witnesses appear at trial, you should give them as much advance notice as possible of the trial date. Then you should serve subpoenas on witnesses that you are not sure will attend without one. A subpoena allows the court to require a witness’ attendance. (See, "Getting Documents and Witnesses by Subpoena"). If a person has been served with a subpoena and then does not show up for court, the court can order a bench warrant for their arrest. You do not need to file a copy of the subpoena with the court, but should bring it with you to trial in case the witness does not show up.

There are a few forms that you may need to fill out before your hearing. You can give them to the judge and a copy to the other side when you arrive for the hearing. If there are any issues regarding child support, spousal support (alimony), or community property distribution, you must complete an Affidavit of Financial Condition (available from the Clerk's office). On the form you will state information about your income and expenses. Please note that you may be required to produce income tax forms and pay stubs to verify the information you put down. If child custody or visitation are at issue, you should also prepare a proposed visitation schedule (also called a "parenting plan"). Whenever you file a document with the court, you must give a copy to the opposing party.

How do I handle myself in court and questioning witnesses?

Handling your own hearings and trial is stressful. This memorandum tries to give you some tips for courtroom behavior that you may find helpful. Other than that, the main thing is to do your best to stay calm. Frequently, the judges give people representing themselves a couple of choices as to how to present their own testimony. You can ask yourself questions and then answer them (although this is very awkward) or you can tell a short story about your side of the case. Whichever you choose to do, spend some time planning ahead. Write out notes for yourself about the important points in your case. Judges do not care for really long testimony especially if it strays from the issues that have to be decided at the hearing. If you can give a brief, clear statement of what you want and why you think you should get it, the judge will appreciate your presentation. You should summarize your main points and then give more explanation.

You will also need to ask your witnesses questions. You will also have the opportunity to ask the other side's witnesses some questions. Again, planning ahead is the key to success. Think about what is the most valuable thing each witness could say on your behalf. Then write down a few questions that will help the witness get the idea across. It’s all right to practice with your witnesses ahead of time, always stressing to them the importance of telling the truth. You may start by asking the witness their name and address. If your witness is a counselor or other professional, you may ask what their occupation is and what their educational degrees are and how long they have been doing their job. Then you can ask specific questions about what information they have about your case. You are not allowed to ask "leading questions" of your own witnesses (a leading question gives the witness the answer you want them to say). You must keep your questions open-ended. Open-ended questions are Who, What, Where, When, How and Why questions. Examples are: "How would you describe my husband’s condition when he dropped the children off at your house?" "What did my husband do when he picked up the children from daycare?"

The other side will question their witnesses first. The judge will give you an opportunity to "cross examine" them (that is, to ask them your own questions). You are allowed to use leading questions to cross-examine these witnesses, in part because the law assumes that these witnesses will be "hostile" or adverse to you. Generally, leading questions ask for a "yes" or "no" answer. Examples are: "Wasn’t ______ drunk when he picked up the children?" "Didn’t ______ swear at the children when he dropped them off at daycare?" You should not ask a hostile witness a question when you do not know what the answer will be. This is because sometimes the answer will hurt your case more than help you. There is nothing wrong with choosing not to cross-examine a witness if you think they will merely repeat their direct testimony. Sometimes it is better to just wait and contradict their testimony either with your own testimony or with the testimony of one of your witnesses.

Some general tips for questioning witnesses are:

• Keep your questions short.
• Don’t ask a question if you aren’t certain you know what the answer will be!
• If you don’t get the answer you were expecting from a witness, don’t argue or accuse him or her of lying.
• If the witness doesn’t answer your question, ask the judge to direct them to answer (some witnesses try to change the subject or talk around an issue).

How do I introduce documents and other evidence?

Evidence is anything your use to prove your claim. Evidence can be a photograph, a letter, documents or records from a business and a variety of other things. The judge will consider all evidence that is properly admitted. For example:

• In a request for change of custody, the child’s school records could be introduced as evidence that he/she is missing a lot of school while living with the other parent.
• In a protection order case, a photograph of any injury you suffered may help your case.
• In a divorce case, a copy of tax returns may be introduced as evidence of income.

Evidence is useful because it can corroborate your testimony; oftentimes you will say that your abuser did something and he will deny doing it. Who is a judge to believe? If you have evidence that supports what you say (a tape recording of his threats or a picture of the damaged furniture) the judge will be inclined to believe your version of the events.

Evidence is also useful because it can make something easier to understand - a drawing or photograph may make your testimony clearer to the judge.

Generally, you can get evidence admitted in the following manner:

• Decide what evidence you want to use and mark each piece of evidence with a removable sticker (labeled Exhibit 1 or Exhibit A, etc.)
• Bring the exhibits to court. You will need to have the judge’s clerk mark your exhibits. If you have several exhibits, you should call the judge’s clerk a few days ahead of the trial to see if you can get the exhibits "pre-marked" before trial. When it is your turn to talk and you wish to admit the evidence do the following:
  • Show the exhibit to the other party or the other party’s attorney (Ask the bailiff to get the exhibit from you to show to the other side).
  • "Lay the foundation" (see below) for the evidence - identify the evidence, explain the relevance of the evidence to your case and establish its authenticity
  • Either you or your witness will have to testify about the exhibit.
  • Ask the court to admit the exhibit into evidence. The other party may object to the evidence. Try to answer the objections the best you can.
  • If the court denies the objections (or if there are none) ask the court to enter the exhibit into evidence.

Laying the foundation for photographs:

• Identification: Produce the exhibit and either you identify it or have it identified by your witness: ("I have in my hand..." or "I am showing you a photograph marked Exhibit 1... or "Can you identify this photograph?") "This is a photograph of my friend..."
• Relevance: Explain how the photograph is connected to this case ("The photograph shows the injuries my friend suffered..") and that it is relevant (timely). "I took this photograph ___ hours after ...."
• Authenticity: Explain the accuracy of the photo. "This photo accurately shows ......"

Ask the court to admit the photo.

Laying the foundation for letters:

• Identification: Produce the exhibit and either you identify it or have it identified by your witness: ("I have in my hand" or "I am showing you a document marked Exhibit ____" or "Can you identify this document?")
• Relevance: Explain how the letter, or more likely the contents of the letter, is relevant, that is connected to the issues in this case. "This is a letter I received from who(?) , when(?) "
• Authenticity: Then you need to prove who the letter came from. "I know it came from _______ because I recognize his handwriting in the letter. I recognize his handwriting because ..... (whatever it is that make you or your witness familiar with his signature)." Also you should explain the accuracy of the condition of the letter (for example, it has not been changed or modified since you received it, or else explain changes or modifications to the letter. Note, that the fact that the letter has been altered may cause the court to refuse to admit it into evidence.)

Ask the court to admit the letter. You may not read the contents of the letter aloud unless the court admits it into evidence.

Laying foundation for documents and records from businesses

• Explain how the document or record is related to your case.
• Call a witness from the business/agency that produced the record, ask the witness what his/her responsibilities are and how he/she is involved in record keeping.
• Show the witness the document or record and ask
  • Was the record made by a person with knowledge of the acts or events appearing in it?
  • Was the record made at or near the time of the acts or events appearing on it?
  • Is it the regular practice of the business or agency to make such a record, and
  • Was the record kept in the course of a regularly conducted business activity?

Ask the court to admit the document or record.

If the record of document is certified (by a public agency) you do not need to do anything before showing it to the judge. The certification by the public agency acts to authenticate it without anything more.

Tips for courtroom behavior.

• Be on time for your hearing, but plan to be at court all morning; your case might not be the first one called.
• Dress neatly, as if you were going to church or a job interview.
• Do not bring food or drinks into the courtroom.
• Do not bring your children; arrange for someone to watch them for you. If your children will be speaking to the judge, have them wait outside the courtroom during the trial.
• Check the monitors in the courthouse or ask the court employees sitting at the information desk which courtroom to go to. Go into the courtroom and sit quietly to wait for your case to be called.
• Review your paperwork before the hearing. Be familiar with your papers. If you or one of your witnesses has filed an affidavit in the case, you need to be familiar with what is said in the affidavit. You may use written notes or an outline during the hearing.
• Stick to the FACTS -- don't ramble when giving evidence to support your side of the story. The time you have to speak will necessarily be limited.
• When it is time for your hearing, the Clerk or judge will probably read all the cases scheduled for hearing at that time. When your name is called answer and, if asked, tell the judge whether your case is agreed, a default, or if there will be argument.
• When your case is called, walk to the table in front of the judge (if you are the plaintiff you will be at the table on the right side of the courtroom; if you are thedefendant, you will be at the table on the left side of the courtroom. Stand facing the judge. The judge will instruct the parties when to speak. Remember to speak only to the judge and only when it is your turn. Do not interrupt or speak to the other party, even if they interrupt or speak to you. You want to be polite and reasonable. Staying calm even when the other party is rude or lies will impress the judge. You will get your turn to prove the other party wrong.

During the hearing:

• The Judge will ask you questions. If you don't understand the question, say so. Don't answer until you fully understand the question.
• Be direct. If you don't know an answer, say so. Do not be afraid to admit that you don't know something.
• Take your time when answering questions. Give the question as much thought as you need to understand it and come up with your answer. Explain your answer if needed.
• Be respectful and courteous. Always address the judge as "Your Honor." Do not interrupt. If something needs to be explained, wait until it is your turn to speak or ask to speak again.
• Be sincere. Don't be sarcastic or argue with the judge or the other side. Stay calm.
• If you are stating dates, times and places, etc., be exact. If you cannot be exact, say that you are only estimating.
• Speak clearly and distinctly, using words, phrases and terms that you understand. Keep your hands away from your mouth and speak loud enough so the judge can easily hear you.
• Remain courteous to the judge after the ruling. Ask the judge whether you or the other side should write the court order (the judge will not write the order). The judge must sign the order before it becomes effective.
• You may bring a friend or advocate for moral support during the hearing/trial. That person must remain silent during the hearing/trial; however, you may ask the judge if that person may be seated at counsel table with you.
• Do not laugh or talk about the case in the hallway or restrooms of the courthouse as the judge, other party or his/her attorney or witnesses may see or hear you.

WAGE ASSIGNMENT INSTRUCTIONS AND FORM NOTICE TO EMPLOYER

You may use this packet if the Court has ordered your abuser to pay you child support for the care of your minor children and a wage assignment (in order to insure that the child support payments are made). This means that your abuser’s employer is directed to withhold the child support payment amounts from your abuser’s paychecks, and pay such amounts directly to you. However, you are responsible for getting a certified copy of the Divorce Decree (that is, a printed, file-stamped copy) sent to your abuser’s employer, along with a copy of the Notice To Employer (included with this packet).

YOU MUST DO THE FOLLOWING:

A. Complete the Notice to Employer with the following information (see sample):

1. Name and mailing address of your abuser’s employer
2. Your abuser’s name
3. Your abuser’s social security number
4. Your name
5. The amount of monthly child support ordered by the Court
6. The address where you want the child support payments sent [NOTE: if you do not want your abuser to know where you live, either rent a post office box from the US Post Office, Mailboxes, Etc., or someplace similar, or have the payments sent to the address of a close friend with whom you are in regular contact).
7. Case Number (the number on your Divorce Decree that starts with

D ________)

B. When you have the Notice to Employer form filled out, make a copy of your Divorce Decree and address an envelope to the employer. Then do the following:

1. Write the date on the date line of the Notice to Employer
2. Place the Notice to Employer (all 5 pages) and the copy of the Divorce Decree in the envelope and seal it.
3. Mail the envelope, Certified Mail, Return Receipt Requested (in addition to the regular postage fee, the US Postal Services charges $3.40 for this service, but it provides proof that the employer received the wage assignment).

Withholding will begin next pay period after the employer receives the Notice.

Date: (today’s date) CERTIFIED MAIL

RETURN RECEIPT REQUESTED

Employer: ABC Company
Number and Street Name
City, State and Zip Code
Employee/Noncustodial parent: John Doe
Social Security Number: 000-00-0000

on behalf of: Custodial parent: Jane Doe

NOTICE TO EMPLOYER

The enclosed copy of the Divorce Decree, sent by certified mail, return receipt requested, shall constitute a notice and demand upon the Employer to begin withholding income from the Employee/Noncustodial parent, pursuant to NRS 31A.280, et seq.

Nevada Revised Statute 31A.280 requires an employer to withhold child support from an employee's wages or commissions upon receipt of a court order to that effect. Compliance by an employer with this notice to assign is a discharge of the employer's liability to its employee as to that portion of the wages and commissions affected [NRS 31A.280(6)].

You are hereby notified that you are required to assign and pay the sum of

$ XXX.00 per month as and for a Court ordered child support obligation to Custodial parent Jane Doe from the wages of Employee/Noncustodial parent John Doe , Social Security Number 000-00-0000 . As discussed more fully below, your failure to make such payments will subject you to personal liability for the same. (NRS 31A.095(2)(d)).

Such payments of $ XXX.00 per month shall continue until the expiration of the date of this Extended Protection Order or until further order of the Court. Such payments must be received by Custodial parent Jane Doe on or before the 1st day of each month.

The amounts withheld must not exceed sixty-five percent (65%) of Employee/Noncustodial parent John Doe’s pay after the deductions for income taxes, social security and union dues.

Amounts certified for assignment of income for child support obligations have priority over other proceedings against the same money.

YOUR LEGAL DUTIES AS EMPLOYEE/NONCUSTODIAL PARENT’S EMPLOYER ARE:

1. You must assign wages beginning with the first pay period that occurs within fifteen (15) days after the date of the notice.
2. You must continue assigning every pay period until the expiration of this Extended Protection Order or you are given notice to modify or terminate the assignment. (NRS 31A.280).
3. You must transmit the amounts withheld to Custodial parent Jane Doe at the following address:

Jane Doe
Street Number and Street Name
City, State and Zip Code

All checks must be made payable to Custodial parent, and include the Case Number D XXXXXX , and Employee/Noncustodial parent John Doe's name for identification.

The monies withheld pursuant to this wage assignment must be delivered as soon as possible after the date of each payment of the regularly scheduled payroll from which the assignment was taken.

4. YOU MUST notify the Custodial parent when the Employee/Noncustodial parent terminates his/her employment with you, YOU MUST provide him/her with the Employee/Noncustodial parent's last known address and the identity of any new employer, if known.

PROTECTIONS FOR EMPLOYERS (NRS 31A.280):

1. You may deduct up to $3.00 for each assignment from the amount paid the Employee/Noncustodial parent to reimburse the business for the costs of carrying out this responsibility. [NRS 31A.280(4)].
2. A disclosure made in good faith pursuant to this statute does not give rise to any action for damages resulting from such disclosure.

PROHIBITIONS AGAINST THE EMPLOYER (NRS 31A.290):

1. It is unlawful for an employer to use the assignments of wages and commissions to collect an obligation of support as a basis for discharging the employee or for disciplinary action against him/her.
   1. The employer may be required to reinstate the employee without any loss of pay or benefits; may be liable for any payments not withheld; may be liable for attorney fees and costs in an amount not less than $2,500 in any action brought by the employee to recover his position; and may be fined $1,000.
2. The employer may not wrongfully refuse to assign from the wages and commission of, or knowingly misrepresent the income of, a person on whom an income withholding notice has been transmitted.
   1. The employer must pay the amount it refused to withhold, and may be required to pay punitive damages of up to $1,000 for each pay period the employer refused to withhold, or knowingly misrepresented the income of the employee. Such amounts must be paid to the damaged family.

CERTIFIED MAIL

RETURN RECEIPT REQUESTED

Employer: ______________________________

______________________________

______________________________

______________________________

______________________________

re: Employee/Noncustodial Parent: _______________________________

Social Security Number: ________________________________

on behalf of: Custodial Parent: __________________________________________

NOTICE TO EMPLOYER

The enclosed copy of the Divorce Decree, sent by certified mail, return receipt requested, shall constitute a notice and demand upon the Employer to begin withholding income from the Employee/Noncustodial parent, pursuant to NRS 31A.280, et seq.

Nevada Revised Statute 31A.280 requires an employer to withhold child support from an employee's wages or commissions upon receipt of a court order to that effect. Compliance by an employer with this notice to assign is a discharge of the employer's liability to its employee as to that portion of the wages and commissions affected [NRS 31A.280(6)].

You are hereby notified that you are required to assign and pay the sum of $________________________ per month as and for a Court ordered child support obligation to Custodial Parent ____________________________________________________ from the wages of Employee/Noncustodial Parent __________________________________________, Social Security Number ___________________. As discussed more fully below, your failure to make such payments will subject you to personal liability for the same. (NRS 31A.095(2)(d)).

Such payments of $_______________ per month shall continue until further order of the Court. Such payments must be received by Custodial Parent __________________ on or before the 1st day of each month.

The amounts withheld must not exceed sixty-five percent (65%) of Employee/Noncustodial Parent’s pay after the deductions for income taxes, social security and union dues.

EMPLOYER: ________________

Re: Non-Custodial Parent: ________________

Amounts certified for assignment of income for child support obligations have priority over other proceedings against the same money.

YOUR LEGAL DUTIES AS THE NONCUSTODIAL PARENT’S EMPLOYER ARE:

1. You must assign wages beginning with the first pay period that occurs within fifteen (15) days after the date of the notice.
2. You must continue assigning every pay period until the expiration of this Extended Protection Order or you are given notice to modify or terminate the assignment. (NRS 31A.280).
3. You must transmit the amounts withheld to Custodial Parent _______________ at the following address:

_____________________________________________________

_____________________________________________________

_____________________________________________________

All checks must be made payable to Custodial Parent __________________, and include the Case Number D______________, and Noncustodial Parent's name for identification.

The monies withheld pursuant to this wage assignment must be delivered as soon as possible after the date of each payment of the regularly scheduled payroll from which the assignment was taken.

4. YOU MUST notify the Custodial parent when the Noncustodial Parent terminates his/her employment with you, AND provide him/her with the Noncustodial Parent's last known address and the identity of any new employer, if known.

PROTECTIONS FOR EMPLOYERS (NRS 31A.280):

1. You may deduct up to $3.00 for each assignment from the amount paid the Employee/Noncustodial Parent to reimburse the business for the costs of carrying out this responsibility. [NRS 31A.280(4)].
2. A disclosure made in good faith pursuant to this statute does not give rise to any action for damages resulting from such disclosure.

EMPLOYER: ________________

Re: Non-Custodial Parent: ________________

PROHIBITIONS AGAINST THE EMPLOYER (NRS 31A.290):

1. It is unlawful for an employer to use the assignments of wages and commissions to collect an obligation of support as a basis for discharging the employee or for disciplinary action against him/her.
   1. The employer may be required to reinstate the employee without any loss of pay or benefits; may be liable for any payments not withheld; may be liable for attorney fees and costs in an amount not less than $2,500 in any action brought by the employee to recover his position; and may be fined $1,000.
2. The employer may not wrongfully refuse to assign from the wages and commission of, or knowingly misrepresent the income of, a person on whom an income withholding notice has been transmitted.
   1. The employer must pay the amount it refused to withhold, and may be required to pay punitive damages of up to $1,000 for each pay period the employer refused to withhold, or knowingly misrepresented the income of the employee. Such amounts must be paid to the damaged family.

N.R.S. 31A.080

Duties of employer upon receipt of notice to withhold. An employer who receives a notice to withhold income shall:

1. Withhold the amount stated in the notice from the income due the obligor beginning with the first pay period that occurs within 14 days after the date the notice was mailed to the employer and continuing until the enforcing authority notifies him to discontinue the withholding;
2. Deliver the money withheld to the enforcing authority within 7 days after the date of each payment of the regularly scheduled payroll of the employer; and
3. Notify the enforcing authority when the obligor subject to withholding terminates his employment, and provide the last known address of the obligor and the name of any new employer of the obligor, if known.

(Added to NRS by 1985, 1426; A 1987, 2246; 1997, 2276)

N.R.S. 31A.090

Notice to withhold binding upon employer; employer may deduct amount for reimbursement of costs; duty of employer to disclose information; immunity.

1. A notice to withhold income is binding upon any employer of an obligor to whom it is mailed. To reimburse the employer for his costs in making the withholding, he may deduct $3 from the amount paid the obligor each time he makes a withholding.
2. If an employer receives notices to withhold income for more than one employee, he may pay the enforcing authority the amounts withheld with one check, but he shall attach to the check a statement identifying each obligor for whom payment is made and the amount transmitted for that obligor.
3. An employer shall cooperate with and provide relevant information to an enforcing authority as necessary to enable it to enforce an obligation of support. A disclosure made in good faith pursuant to this subsection does not give rise to any action for damages resulting from the disclosure.

(Added to NRS by 1985, 1427; A 1987, 2246; 1997, 2277)

N.R.S. 31A.095

Refusal of employer to withhold; liability; fine.

1. If an employer wrongfully refuses to withhold income as required pursuant to NRS 31A.025 to 31A.190, inclusive, after receiving a notice to withhold income that was sent by certified mail pursuant to subsection 2 of NRS 31A.070, or knowingly misrepresents the income of an employee, the enforcing authority may apply for and the court may issue an order directing the employer to appear and show cause why he should not be subject to the penalty prescribed in subsection 2 of NRS 31A.120.
2. At the hearing on the order to show cause, the court, upon a finding that the employer wrongfully refused to withhold income as required or knowingly misrepresented an employee's income:

(a) May order the employer to comply with the requirements of NRS 31A.025 to 31A.190, inclusive;

(b) May order the employer to provide accurate information concerning the employee's income;

(c) May fine the employer pursuant to subsection 2 of NRS 31A.120; and

(d) Shall require the employer to pay the amount the employer failed or refused to withhold from the obligor's income.

(Added to NRS by 1987, 2240; A 1997, 2277; 1999, 905)

N.R.S. 31A.100

Immunity for complying employer; discharge of employer's liability to obligor; immunity for enforcing authority.

1. An employer who complies with a notice to withhold income that is regular on its face may not be held liable in any civil action for any conduct taken in compliance with the notice.
2. Compliance by an employer with a notice to withhold income is a discharge of the employer's liability to the obligor as to that portion of the income affected.
3. If a court issues an order to stay a withholding of income, the enforcing authority may not be held liable in any civil action to the obligor for any money withheld before the stay becomes effective.

(Added to NRS by 1985, 1427; A 1997, 2278)

Proceed to Section 11: Child Support Enforcement by the Clark County District >