A few months ago, I posted a blog “Mind Your Manners” about how a party’s attitude may play a role in a judicial determination.  This issue arises again in the recent unpublished decision of Sahai v. Sahai, confirming again that credibility is key in litigation.

In Sahai, the appellant/ex-husband appealed a trial court orders

Credibility is key when it comes to matrimonial litigation – from your initial filing through the last day of trial. In our practice, we can often make educated guesses of the range for equitable distribution and alimony from the initial consultation based upon the many statutory factors that a court has to consider and some

Picture this – two spouses in a matrimonial dispute.  The husband (or former husband) files a motion to reduce his alimony.  In support of that motion, the husband files a certification, under oath, telling his side of the story about how he lost his job, has a disability, or whatever reason it is that has caused his down income.  On the flip side, the wife files her response to the husband’s motion, with a certification of her own, telling her side of the story about the husband is still living lavishly, is lying to the court, and is simply doing what he has to do to reduce his payment obligation to her.  Not surprisingly, the two versions of events could not be more diametrically opposed.

In that scene, what is the trial judge supposed to do?  Is he just supposed to take the husband’s word for it that he can no longer earn what he did before and that his entire financial picture merits a reduction of his support?  Is he supposed to believe the wife’s response, about how her former husband is simply just a bad guy who refuses to pay that to which he agreed or was ordered.

Generally – but, of course – not always, a trial judge is not supposed to resolve the question of credibility, or who is telling the truth, simply by reading the papers submitted by each party.  When there is a dispute of fact, the judge is supposed to then order a hearing, during which time he will take testimony from the parties and then determine who is credible/truthful.  Ordering a hearing, though, does not happen in every case, as almost every case will inevitably involve some dispute of fact, to some degree.  If the judge ordered a hearing in each instance, the family part would be even more flooded than they already are.

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It seems that moving parties are more often trying to overcome the defects of their motions by arguing that a plenary hearing should be held due to unresolved questions of fact or issues of credibility.  In other words, the litigant asks the court to hold a trial at some point in the future because the party asserts that the court cannot properly resolve the party’s motion simply by reviewing the disputing positions of the respective parties set forth on paper.

While the case law indicates that a court cannot resolve issues of credibility or disputed facts without a trial, involving testimony, properly submitted evidence and the like, litigants often try to use such case law as a crutch to get past the fact that their motion should be denied on its face.  What often happens, as a result, is that a court will err on the side of caution in the realm of judicial discretion and grant the hearing.  The collateral damage is the incurrence of additional counsel fees, and substantial time before the motion is actually decided, thereby leaving the parties in limbo.  While hearings are often necessary to resolve legitimate issues, the question is whether the issue is always legitimate.

For the financially superior moving party, this may be exactly what he or she wants, as convincing a court to grant a future hearing can be an effective tactic to pressure the financially inferior party to settle.  While that party can seek counsel fees from the court to help take them through the litigation against the other party on an even playing field, there is no certainty that such fees will be granted.

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I have recently had a case where the other attorney would tell us one thing on the phone and another to the Court or in Court papers.  When called on this about face in court, the attorney made a weak denial before saying that it does not matter what he said and that it only matters

Last week we blogged about a recent unreported Appellate Division case where I was the attorney for the winning party at trial and on appeal.  To view the prior post, click here – to view the Appellate Division opinion, click here.  In last week’s post, I blogged about the importance of credibility.  There were other

Trials are often won or lost based upon credibility determinations.  More often than not, cases are replete with he said/she said situations, or real differences of opinion as to almost every issue.  In an interesting unreported Appellate Decision released on July 15, 2009, credibility was critical.  As the author of this post was the successful

Frequently in divorce, and I am sure many other cases, there are diverging versions of an event.  Often that is caused by the fact that people have a different perception of events.  Maybe it is a Mars/Venus thing when it comes to husband/wife relationships.  in these cases, both people honestly believe their version of events.