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TJ, Esq.
TJ, Esq., Attorney
Category: Family Law
Satisfied Customers: 12403
Experience:  JD, MBA
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As the plaintiff in a contested divorce case, I understand

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As the plaintiff in a contested divorce case, I understand that I present my case first to show the defendant committed adultery. But I have two questions:
1) When do I present my proposal for equitable distribution of property? At the end of my case or when the defendant completes their counter claim case?
2) If I have character witnesses, must I want till the defendant presents their mental cruelty counter claims or can I call them during my case?
Thanks, George
Hello and thank you for allowing me the opportunity to assist you.

What will the character witnesses testify about?
Customer: replied 4 years ago.

The character of the plaintiff, their observation of the relationship being loving and caring over years with no sign or ever a conversation about mental abuse. Basically the defendant is claiming mental cruelty since the private investigators have definitive video and witnessed her sexual relations with the paramour thus this counter claim is an attempt to show cause for the adultery.

Hi again. Thank you for clarifying.

It sounds like you intend to use the witnesses to defend against the counterclaim. Therefore, you would not call them to the stand until it is time to defend against the counterclaim. However, I have to say that it is doubtful that the witnesses will be of much use. Their testimony that they saw you in happy times would not disprove cruelty. Even the most cruel of spouses could likely muster a few people to testify that he's a great guy and that a marriage was blissful. I'm sure OJ could have found such witnesses, but it does not mean he didn't beat his wife and eventually kill her. So, I suspect the judge would not allow the kind of testimony that you have in mind. Your wife will have to prove the cruelty somehow, and if your witnesses can rebut her specific examples, then that would be useful. General claims that you're a good guy or that the marriage was happy won't help. In any event, your rebuttal witnesses will have to wait until it's time to defend against your wife's counterclaim.

As for your proposal regarding the distribution of property, you can present that to the judge at the end of your case.

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Customer: replied 4 years ago.

Thanks. Just for clarity, "at the end of your case" does that mean before the defendant presents their counter claims?


 


If they objected to certain exhibits and I responded, are theses argued before my case begins or as each exhibit is brought forth?

Hi again.

Yes, I meant at the end of your presentation. You should offer it then (though the judge can opt to accept it at any time).

Generally, arguments over exhibits are argued as they are brought forth, since you technically may not even opt to use an exhibit that they're arguing over. On the other hand, the judge may require arguments over all exhibits at the same time before they are used in order to keep things moving efficiently. As you can probably tell from my responses, the judge has a lot of latitude as to how to run his court. The safe thing to do is to simply ask the judge what he prefers.
Customer: replied 4 years ago.

Thank you. One last follow up.


In the original complaint, I requested joint custody. However, since the complaint the defendant has had a second boyfriend and made a series of poor financial decisions that I don't want these factors adversely affecting our 15 year old daughter. Our 21 year old daughter completely supports if I retain sole custody. So how/when can I change my complaint to request sole custody. I understand that the hearing tomorrow is a equitable distribution and divorce grounds hearing and that a custody hearing would come later. Is that right?

Hi again. I apologize for getting back to you the following day, but I logged off shortly after responding to you and didn't see your reply until now.

In order to file an Amended Complaint, you will need to ask the court for leave for that purpose. The judge will ultimately do what he thinks is in the child's best interests regardless of what you ask for, however. Accordingly, even if the judge does not grant your request for leave, you can offer the evidence during the trial that your spouse should not have joint custody. However, it is important to note that the judge will almost certainly grant your spouse some sort of joint custody (even if she only has limited visitation), unless she is deemed an unfit parent (which would not likely happen unless she's into drugs, criminal activity, etc.).
Customer: replied 4 years ago.

Hi.


 


Are you saying that I cannot file an amended complaint adding additional adultery claims and changing my request for custody unless I first file a request for leave? I would appreciate clarification on the process.


Thanks.


George

Customer: replied 4 years ago.

Sorry one last question.


 


Is the motion to amend complaint a two week motion? Does it require setting it for the Friday docket with two weeks notice or can it be submitted with one week notice? Is it required to appear before the judge before the amended complaint is file/entered by the court?

Hi again.

Q: Are you saying that I cannot file an amended complaint adding additional adultery claims and changing my request for custody unless I first file a request for leave? I would appreciate clarification on the process.
A: Rule 1:8 states that you must ask for leave of court for any amendments. However, you should include the amended complaint with the motion for leave, and if it is granted, then the amended complaint will be deemed as filed.

Q: Is the motion to amend complaint a two week motion? Does it require setting it for the Friday docket with two weeks notice or can it be submitted with one week notice? Is it required to appear before the judge before the amended complaint is file/entered by the court?
A: That is ultimately up to the court, but 2 weeks notice is not required by default. The safest thing to do is contact the court clerk to ask whether the judge will require 2 weeks notice. More than likely, it will not be required. One week should be sufficient. As stated above, the amended document is filed with the motion, and deemed filed if the judge grants the motion.
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