When in Divorce Court, Do as Divorce Lawyers Do: Mind Your Family Law Rules of Procedure and Evidence

Husband and Wife divorce. During the divorce, Husband is incarcerated and not represented by counsel.

At trial, according to Husband, the family court enters a default judgment for Wife and divides Husband’s separate premarital property as though it were marital. Months later, Husband seeks reconsideration by the family court. Upon review, however, the family court sticks with its original rulings.

This case exemplifies how lay people often seem to perceive the legal system: the Court simply didn’t “get” it the first time around. Without really grasping precisely what, how and why their case went wrong the first time … and exactly how they can avoid repeating their previous performance the second time around. (If they properly avail themselves of the methods for potentially getting a second time around.)

Unfortunately, naivete, followed up with blind faith, is rarely a successful legal strategy. As illustrated by this case.

As with most cases under review, the reviewing court is generally deferential to the family court before which the case was tried – and will only set the ruling at trial aside if it appears, in effect, that the family court ruling was pulled out of thin air, without any justification or basis whatsoever.

And how does the reviewing court know whether this might be the case? From the trial record.

The trial record being a court reporter’s transcription of the trial. Usually, not inexpensive.

It is the responsibility of the party seeking the review to furnish the transcript to the reviewing court. Husband here failed to do so.

For that reason, the reviewing court is unable to evaluate the ruling at trial by the family court. And therefore the ruling by the family court is upheld.

The reviewing court’s ruling and rationale will undoubtedly strike many lay people as overly technical and harsh. Perhaps so.

But, nonetheless, totally predictable and not unusual.

And that is the valuable lesson that the layperson should take away from this case: the rules of procedure and the laws of evidence (and, for that matter, all rules and laws) matter in court, and apply to everyone in court, even lay people.

Read more in this intermediate level appellate case.