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S. Huband, Esq.
S. Huband, Esq., Attorney
Category: Family Law
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Experience:  Experienced, and knowledgeable family law attorney.
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I live in VA. I am currently in the process of my divorce

Customer Question

I live in VA. I am currently in the process of my divorce - Completed to date is everything except the trial. (discovery, interrogatories, pendente lite) I am the plaintiff. Filed with cause: Abandonment. No longer can I afford the $400 per hour attorney, going pro se from here on out. I want to add discovery documents that my attorney forgot to include as well as either amend the original complaint to change it to adultery, or add a witness to be subpoenaed for the trial. (the paramour) How do I do this? This is newly discovered evidence- but I am not sure what way to go. The paramour has no money--so it is not a financial gain for me to name her as co-respondent--My goal is to push my husband to a settlement that is fair-by exposing his indiscretions- this may be most effective.
Thanks in advance.
Submitted: 9 months ago.
Category: Family Law
Expert:  S. Huband, Esq. replied 9 months ago.
Thank you for the opportunity to assist you.

Q) I want to add discovery documents that my attorney forgot to include...

If you mean divulge additional information to the other party, then just send the documents to the other party's attorney and file a copy with the court. Make sure to include a certificate of service and sign it with your name and address. Sign it "pro se", and make it clear that you now represent yourself.

If you mean you want to request additional discovery from the other party, you can do that if it's for clarification of previously disclosed evidence. If you're filing all new discovery requests, the judge may or may not allow that, depending on how close your trial date is.

Q) I want to amend the original complaint to change it to adultery.

While the rules of procedure allow amendments to a complaint to be "liberally granted in furtherance of the ends of justice," you might not be allowed to do this if it's very late in the litigation. In other words, if changing your theory of the case goes from abandonment to adultery, that might cause all sorts of new discovery to have to be done. A judge may not grant that amendment.

In order to amend a complaint, simply file an amended petition for divorce. It's probably good to attach a copy of the original complaint, too. Make sure you file the original with the court, and include a certificate of service to show you've served a copy on the husband's attorney.

Q) I want to add a witness to be subpoenaed for the trial (the paramour.)

This person probably wouldn't be relevant to abandonment. So, while you could subpoena the paramour, she may not be allowed to testify unless the judge grants your motion to amend the complaint.

Also, you're probably going to run into a 5th amendment problem. While nobody gets prosecuted for adultery, it's still on the books in Virgina. That means that a witness can plead the 5th and assert their constitutional right to silence in a deposition or at trial when asked questions about adultery. The paramour may do that, assuming she knows to. Your husband's attorney may tell her to take the 5th, too.

Attached is a form you can use for witness subpoena, in case you decide to go this route:

Attachment: 2013-09-25_025334_cc1342.pdf



Q) My goal is to push my husband to a settlement that is fair-by exposing his indiscretions - this may be most effective.

Careful here. You might be setting yourself up for sanctions and for an award of attorney's fees if your husband's attorney can prove that you are amending the complaint and subpoenaing various witnesses in order to "harass or to cause unnecessary delay or needless[ly] increase ... the cost of litigation."

I understand where you're coming from, but tread carefully. You don't want to be paying your husband's attorney, right?!?!?

I hope my response has been helpful. If you have follow-up questions or concerns on this topic, please ask. Otherwise, please rate my answer positively so that I can receive credit for my work. Doing so will NOT cost you any additional fee.

Take care,
Shuband
Customer: replied 9 months ago.


Thank you- your answers are very helpful. What, in your opinion is the best way to proceed? My attorney, originally was seeking to amend to adultery- he has admitted previous adulterous acts, (prostitutes)- however, by VA law, I condoned it by attempting to "work on the relationship"= buying time to get my ducks in a row. This new info puts yet another layer- Admin Assist. at his place of employment- lots of circumstantial evidence- but no hardcore snapshots. I have a strong abandonment case- (left home, stopped making mortgage payments, transferred mail, shut off utilities.) however, I think naming this women would truly assist my case- for abandonment as well as adultery- the evidence points to her being the party he bunked with when leaving. Should I go the subpoena route as a witness to the abandonment? OR do I need to amend the original complaint if I am to direct questions about this and a relationship with my husband? His attorney is fully aware I am PRO SE, so she is doing everything in her power to keep me from naming the woman. (statements such as "we do not consent to a amended complaint, etc.) (I have told her that I intend to name paramour.) - Just not sure what way to go-- Best course of action to get it all on the table. The discovery documents are items that my attorney forgot to add in my accusations of reasons for decline of marriage. The statements were made but he never filed the documents supporting the statements, "found a note in my husbands possessions detailing his plans" - Attorney forgot to include the note in the paperwork.


Thanks again. Trial date is in January 2014

Expert:  S. Huband, Esq. replied 9 months ago.
Thanks for the update.

Q) This new info puts yet another layer- Admin Assist. at his place of employment- lots of circumstantial evidence- but no hardcore snapshots.

Remember that fault grounds have to be proven by clear and convincing evidence. That's a fairly high standard. Not quite "guilty beyond a reasonable doubt", but close. Without more evidence than you've mentioned above, I doubt you would get much traction out of adultery.

In the "old" days, one HAD to prove a fault ground to get divorced. The judge could actually say "no" to a divorce if the evidence wasn't strong enough! Nowadays, fault grounds play a big role in two ways: spousal support and equitable distribution of property. Fault grounds can be a bar to spousal support, and it's one of the factors that can be used to weigh how much property or debt the spouse who was NOT at fault gets.

If you think you have a strong case on abandonment, don't "abandon" that fault ground. (I know, that was an awful pun. I couldn't resist.)

Q) Should I go the subpoena route as a witness to the abandonment? Do I need to amend the original complaint if I am to direct questions about this and a relationship with my husband?

You could subpoena the paramour to corroborate your contention that husband left home and abandoned you. If he left to shack up with Suzie Q the administrative assistant and he and/or she admits as much, this strengthens your case on abandonment. The other attorney will probably object to relevance and will tell "Suzie" to keep her mouth shut and take the 5th.

Q) Best course of action to get it all on the table.

That's a valid point. If you want to amend your complaint and ADD adultery as a fault ground, do it sooner than later. We're almost at October, and a judge may balk at moving the trial date if discovery has to be re-hashed by adding a new fault ground. Don't wait much, if any, longer.

I think you have a decent case on abandonment. Don't give up on that. You can allege as many fault (as well as the non-fault) grounds as you wish, you're not just limited to one.

I'm off to bed now. I'll check for your response, if any, in the morning. If not, I wish you the very best with this case. Please ask me for help in the future if you need it.

Take care,
Shuband
S. Huband, Esq., Attorney
Category: Family Law
Satisfied Customers: 996
Experience: Experienced, and knowledgeable family law attorney.
S. Huband, Esq. and 3 other Family Law Specialists are ready to help you
Customer: replied 9 months ago.

What documents do I need to amend the complaint? What documents do I need to add discovery documents? I can only make motions one day a month (first Friday of every month)- does this mean I can only file these amendments and/or additions on that day of any given month?


 


Do I file the documents first, or do I serve the parties and then file the documents? With regard to service to the attorney, Certified acceptable? Should I name the paramour to the attorney prior to the service? (mail a letter, email info etc.)?


 


How much timeframe is acceptable to give his attorney? As of date, my husband has zero witnesses, I have many--however no disposition statements have been requested. My husbands attorney is "confident we can settle all other matters after the close of the sale of the marital home." - so no aggressive court strategy has been exhibited on her part. If I have to have this done in a week, I need the paperwork (forms) questions as a priority.


Thanks again


 

Expert:  S. Huband, Esq. replied 9 months ago.
Thanks for the update and the positive rating for my previous response.

Q) What documents do I need to amend the complaint?

 

Use the original complaint as a template. Simply title the new pleading "Amended Complaint For Divorce" etc. If you do not have a copy of the original complaint, you can obtain a copy of virtually everything in your file from your previous attorney. Request a copy of your file. They should be able to get it to you pretty quickly.

 

Q) What documents do I need to add discovery documents?

 

Same as above; use the discovery request(s) that your attorney already filed as a template. Change the caption to "Amended..." etc.

 

Q) I can only make motions one day a month (first Friday of every month)- does this mean I can only file these amendments and/or additions on that day of any given month?


You can file pleadings any time with the clerk. If you are limited to having motions heard in the court one day a month, that's just for going to court to argue over something that you and the other attorney cannot figure out on your own together.

Q) Do I file the documents first, or do I serve the parties and then file the documents?

 

If you're referring to the additional discovery, that would be an amended answer or response to the defendant's previous discovery request. You file the amended answer/response with the clerk, you attach the documents to that, and then you mail (via "regular" mail) an exact duplicate of what you filed to the opposing attorney.

 

Q) With regard to service to the attorney, Certified acceptable?

 

Regular, snail mail is OK. Look at the older documents your former attorney used. Toward the bottom of any pleading, there should be something titled "Certificate" or "Certificate of Service." Use that as your guide.

 

Q) Should I name the paramour to the attorney prior to the service? (mail a letter, email info etc.)?

 

I'm not sure what you mean. If you want to subpoena her, just go ahead and do that. If the other attorney has asked you (or your former attorney) for a list of all witnesses who you may call as a witness at trial, you have to notify the attorney of her name, address etc.

 

Q) How much time frame is acceptable to give his attorney?

 

I'm not sure what you mean by this question. Please elaborate.

 

Thanks again,

Shuband

Expert:  S. Huband, Esq. replied 9 months ago.
Hello,

I was notified that you rated the answer I gave positively and that you generously applied a bonus payment for my efforts. Thank you so much. I am very pleased and gratified that I was able to help you. I sincerely XXXX XXX matter(s) we discussed turn out well for you.

Please ask for me in the future if you have additional questions or concerns. Again, thank you very much for the opportunity to assist you.

Take care,
Shuband
Customer: replied 9 months ago.


Thanks so much for the very helpful information. I mailed her via US mail do updated documents that I filed with the courts on Friday. A supplemental response to RFPD. I added two documents that I have located to add details to my abandonment case. i.e; A handwritten note my husband made detailing his intentions, steps of his plan to vacate the house and stop paying the mortgage and a 2nd document with updated 5 yr. expenditures- spreadsheet, created by him, showing who paid what in our household, to validate my claim that I paid for all repairs and 1/2 mortgage.
(he was very anal retentive about note/data tracking- a plus for me in this case.)


And a second document I filed was a supplemental Interrogatory response naming the paramour as a witness, and what information that she is expected to testify to, her address, phone, etc.


 


His attorney advised me that I did not need to file these documents with the courts, I could have just provided her the originals/information. I told her, she should not be advising me as it was not ethical.


 


How long can I wait to subpoena the paramour, with the case being heard in Jan.?


 


Thanks again,


 

Expert:  S. Huband, Esq. replied 9 months ago.
Hello again! Unfortunately, I'm away from my computer right now. I'll respond to your posting as quickly as possible. Thanks for your patience.

Shuband
Customer: replied 9 months ago.


No problem, no rush.

Expert:  S. Huband, Esq. replied 9 months ago.
Thanks again for your patience.

Q) A second document I filed was a supplemental Interrogatory response naming the paramour as a witness, and what information that she is expected to testify to, her address, phone, etc.

How do you know what she will say? Did you interview her, etc.?

Q) I told her, she should not be advising me as it was not ethical.

LOL, yup. Agreed.

Q) How long can I wait to subpoena the paramour, with the case being heard in Jan.?

I wouldn't wait much past mid November.

The general rule of thumb is to give at least 30 days breathing room. But, November and December are notorious for backups due to holidays, and early January has at least one.

If you have follow-up questions or concerns on this topic, please ask. Take care,
Shuband
Customer: replied 9 months ago.


Thanks - I know what she will answer if she tells the truth--


I have done enough investigating to put her, (a complete stranger to me), and my husband, together before the abandonment, the day of the abandonment, and up until now--with a paper trail of gas receipts, restaurant receipts, notes, events attended by both, online listings of them in chronological order by registration and placing order- There is nothing coincidental about my investigation. GPS blocking devices, her movement to my husbands office-hotel stays, etc. I assume she will plead the 5th, but I hope she doesn't. Why would anyone plead the 5th? Wouldn't that be an automation presumption of guilt?


When I subpoena her, can I provide, in its entirety, a full copy of my divorce complaint? I ask, because by doing so, I will open a plethora of info to her about the things he HAS admitted to--(fetishes and the likes). Thanks again.

Expert:  S. Huband, Esq. replied 9 months ago.
Thanks for the update.

Q) Why would anyone plead the 5th? Wouldn't that be an automation presumption of guilt?

Most everyone does. It's literally a technicality that people claim a 5th amendment privilege to remain silent in Virginia. Literally NOBODY gets prosecuted under state law for this crime. Yet, it's what happens every time.

As far as a presumption of guilt, no, it doesn't work that way. In fact, that's the basic purpose of the 5th amendment right; it prevents a person from being "...compelled in any criminal case to be a witness against himself..." Although you're in a divorce case, which is not a criminal case, the Supreme Court has said that, since the paramour could be prosecuted for a crime under state law based on that testimony, she can claim the 5th in a related civil proceeding.

Q) When I subpoena her, can I provide, in its entirety, a full copy of my divorce complaint?

You can. I doubt it will change her mind about taking the 5th.

Thanks again,
Shuband
Customer: replied 9 months ago.


Thanks so much! You have been awesome! I know providing a complete divorce complaint copy won't change the plead ---but it will surely make my husband wish he had a frontal lobotomy rather then have taken this divorce to such lengths- and THAT, is payment enough for all the hardship. Again, thank you.

Expert:  S. Huband, Esq. replied 9 months ago.
Q) I know providing a complete divorce complaint copy won't change the plead ---but it will surely make my husband wish he had a frontal lobotomy rather then have taken this divorce to such lengths- and THAT, is payment enough for all the hardship.

I'm kind of thinking that I should never get on your bad side! LOL.

I'm off to bed. I'll check back in the morning to see if you have additional questions. Please ask for me in the future if you need additional assistance.

Best wishes,
Shuband

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