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Legal Research Centers of West Virginia |
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Preparing For The Hearing |
My papers have
been filed and served. What do
I do to get ready for my hearing?
Now
is the time to prepare your case. You
need to gather the evidence that will help prove your case to the judge. The evidence could be papers, like receipts or bills, which
you bring to court with you. You
can also use witnesses to tell the court what they know about your case.
CASE I – DIVORCE
Angela wanted to get a divorce because her husband left her. She went to the Clerk of the Circuit Court to get a Divorce Packet, which contains all the forms she needs to fill out to file for divorce. There is a charge for the Divorce Packet, but Angela filled out a Fee Waiver Form. Her income was below the guidelines, so there was no charge for the forms or the filing fee. The Clerk explained that she needed to read the instructions carefully before starting to fill out the forms. The Clerk suggested that Angela practice in pencil before making a final copy.
There are specific things that Angela needs to do before the hearing. Outlined in the Divorce Packet, they include:
· Filling out a Financial Statement to help the judge make decisions about dividing property and providing child support and setting spousal support. The Family Court will need copies of financial records, like income tax statements, pay check stubs, the monthly bills, deeds to property, bank accounts, and pension plans.
·
Filling
out a Parenting
Plan.
A Parenting Plan is like a schedule. It lists when the child(ren)
will be with each parent and who will make decisions about the child(ren).
It is good if both parents can agree on the Parenting Plan.
When
Angela filed her divorce, her case was assigned to a Family Court Judge.
Each judge has a Case Coordinator.
The Case Coordinator may want to meet with both sides before the
hearing to make sure that they have completed all the necessary paper work.
If Angela has questions about the procedures in her case, she can
call the Case Coordinator.
CASE II – RENT CLAIM
Bob was
sued by his landlord. The landlord filed a Complaint stating that Bob had not paid
his rent. The landlord asked
the court to force Bob to move out. Bob
received a copy of the Complaint and a Summons telling him how long he had
to respond. Bob went to the
Clerk for the Magistrate Court and was told that he needed to file an
Answer. If Bob did not file an
Answer by the deadline, his landlord could have asked the court to rule
against him right away. This is
called a Default Judgment.
The Clerk gave him a form and he filled it out.
He checked the box that said he “denied the matters set forth” in
the petition and in the space provided he explained what happened in this
way:
“A
pipe broke in my basement. The
landlord told my wife that we should get a plumber to fix it, pay him and
deduct it from the rent, so we did. The
plumber
When the pipe broke in Bob’s basement, it also damaged a rug. Bob decided to ask the court to order his landlord to pay him for it. He checked the box on the form that he was asserting a Counterclaim and explained what happened to the rug and how much the landlord should pay him for it.
Bob needs to figure out what evidence he needs to prove his case. The kinds of evidence he should consider are:
· The receipt from the plumber or a copy of his cancelled check. The plumber’s testimony might also be helpful. He could testify that he did the repair and identify the bill.
·
Testimony
from Bob’s wife. She can
testify that the landlord told her to hire a plumber and deduct the cost
from their rent.
· A receipt showing what Bob paid for the rug. If Bob uses receipts or checks as evidence, he should make sure that he has three copies — one for the court, one for the landlord, and one to keep for his own records.
If his wife
or the plumber is going to testify, he needs to write out his questions and
go over them with each witness before the hearing.
If the plumber does not want to come to court, he can get a subpoena forcing the plumber to come to court.
The Clerk’s office can tell him how to serve the plumber with a
subpoena. But he should
be careful — a witness who doesn’t want to testify may hurt his case
more than he helps it.
Can I find out what the other side is going to say and bring it to
the
hearing?
It is possible to find out what evidence the other side is going to
present through a process called discovery,
when you “discover” information from others.
In civil cases, you have the right to get information about witnesses
and copies of documents before the hearing.
There are complicated Court
Rules about what you can get through discovery and strict time
limits apply. If you need to use
discovery, you may want to talk to a lawyer.
Can I try to settle my case before the hearing?
Absolutely.
Many cases settle out of court without a hearing.
For example Bob’s case might be just a simple misunderstanding
and could be settled with a phone call to his landlord or the landlord’s
lawyer. He might also want to use
a mediator to help Bob and his landlord reach a settlement
or an agreement.
In Angela’s case it will be better for everyone if they can agree on the Parenting Plan before the hearing. If the parents can’t agree on how the children will be cared for, and how the parents will share their parenting responsibilities, the Family Court Judge will probably appoint a mediator. The mediator will sit down with both parents in an informal setting and help them resolve some or all of their differences in caring for the children. The Supreme Court of Appeals of West Virginia has a list of approved mediators used in Family Court. These mediators charge a fee for their services, unless the parents both have a fee waiver.