Amnesty Law

Jane Doe is a fictional divorcée whose plight will sound familiar to most divorce attorneys. Her husband, John Doe, had repeatedly and flatly lied in gaining primary residential care of Jane’s young daughters. He claimed to cook the majority of their daughters’ meals, wash their clothes, read to them… the fabricated list went on and on. Few witnesses could contradict him because he maintained a convincing façade for family and friends. The only third-party witnesses who knew the truth were the parties’ daughters, and Jane Doe’s attorney declined to offer the young girls’ testimony. Her attorney said testimony from “kids is usually inadmissible.”

Jane Doe, like many divorcing parents, may have lost custody because her attorney was unaware of recent legal developments opening the door for child testimony. In 2010 the Washington Supreme Court’s opinion in State v. S.J.W., 170 Wn.2d 92 clarified that children are presumptively competent to testify. As the Court wrote: “A six-year-old child… may be more competent to testify than an adult in a given case; no court should presume a child is incompetent to testify based upon age alone…. [W]e hold that courts should presume all witnesses are competent to testify regardless of their age.” The Court buttressed its opinion with comparable federal law.

At a 2011 Family Law Evidence Continuing Legal Education Seminar in Snohomish County, commentator Karl Tegland stated witnesses over the age of four tend to survive competency challenges in Washington. An audience member responsively chortled that no Snohomish County family law “commissioner would leave an attorney with a shred of dignity” if the attorney tried to submit a declaration from a child that age. Other attendees shared the vocal audience member’s reservations about child testimony. Obvious practical and public policy concerns have given local courts and practitioners good reason to avoid child testimony, especially in family law hearings where parties submit evidence by declaration. Continue Reading

1. Do not act in haste or in rage – you may regret it later

• payback actions such as damage to property or waste of funds using credit cards and other vindictive acts may cost you money -coming out of your share of settlement
• there may be penalties involved in if you commit a fraud or destroy or hide documents or assets
• if the matter goes to court the procedure of using subpoenas against third parties including your employer and bank, may uncover your actions anyway
• hiding assets under another person’s name can in a lot of cases be uncovered and will heavily penalise the spouse who has deliberately not made disclosure of all assets

2. Make sure you get proper advice from an experienced family law solicitor before you start making plans and also consider alternative dispute resolution

• this is essential for getting the proper advice about your entitlement and what action to take
• check their website and other places for information about the law firm you are going to make an appointment with
• check with the Law Institute to ensure that your lawyer is qualified and sufficiently experienced
• in most cases you will need to try to mediate or negotiate in some form regarding any disputes over children, before you are permitted to take the matter to court (there are exceptions however where there is urgency or violence)

3. Collect your papers

• record keeping is must for property settlements, including your spouse’s bank accounts in case you need to check what has been spent by him or her over the last year or more
• tax returns
• evidence of loans
• superannuation statements
• contracts to purchase property
• emails and letters and other written evidence of gifts and agreements to repay Continue Reading