When selecting witnesses for your Oregon divorce or child custody trial, there are several considerations. The following are examples:

What sort of witnesses do I need for my divorce trial?
How many witnesses should I have?
How long will the witnesses be needed to be in court?
What if my witnesses can’t or won’t come to court?
If my witnesses can’t come to court, can they send in an affidavit, a letter, or call in by phone?
What if my witnesses say they’ll come, but don’t show up?

When selecting witnesses for your divorce trial, it’s best to start with some basic principles of Oregon law. Oregon divorce trials are trials to a judge only (often referred to as a “bench trial”). There is no jury. This means that Oregon’s Uniform Civil Jury Instructions (UCJI) are illustrative and helpful but not controlling. For example, UCJI No. 10.03 states as follows:

“Evaluating Witness Testimony: The term witness includes every person who has testified in this case. Every witness has taken an oath to tell the truth. You may believe everything a witness says, or part of it, or none of it. In considering the testimony of any witness, you may take into account:
(1) The opportunity and ability of the witness to see, hear, or know about the things the witness told you.
(2) The witness’s memory.
(3) The witness’s manner while testifying.
(4) The witness’s interest in the outcome of the case and any bias or prejudice.
(5) Whether other evidence contradicted the witness’s testimony.
(6) The reasonableness of the witness=s testimony in light of all the evidence.
(7) Evidence concerning the character of the witness for truthfulness.
(8) Evidence that the witness has been previously convicted of a crime.

The instruction goes on to state that other factors that bear on believability can also be included.

Another civil jury instruction– UCJI No. 10.04– also provides guidance on what issues a fact-finder might be looking at when evaluating witnesses:

Witness False in Part: A lie is a false statement made with the intent to deceive. A witness may be mistaken, confused, forgetful, or contradict him- or herself or other witnesses without lying.
If you find that a witness has lied in some part of his or her testimony, then you may distrust the rest of that witness’s testimony.
You have the responsibility to determine what testimony, or portions of testimony, you will believe.

One last helpful jury instruction is UCJI 10.06. It defines “expert witnesses” rather broadly:

An expert witness may give an opinion on any matter in which that witness has special knowledge, skill, experience, training, or education. The opinion may be given in response to a hypothetical question. A hypothetical question asks a witness to assume that certain facts are true, and then to give an opinion based on those assumed facts.
You should consider the qualifications and credibility of the expert witness, the reasons given for the opinion, and the reasonableness of any assumptions underlying the opinion. You are not bound by the opinion. Give it the weight, if any, to which you consider it entitled.

“What sort of witnesses do I need for my divorce trial?”

The witnesses for your divorce trial will depend on what issues there are in the actual divorce. Child custody? Parenting time? A parent’s earning capacity? The correct or fair amount of child support? Whether or not spousal support should be awarded and– if so– how much and for how long? Who should be awarded the martial residence property? Who should be awarded what personal property? The value and allocation of investment or retirement accounts? As you can see, every case is different and so you’ll need to give careful consideration as to what exact issues are disputed in your case.

“How many witnesses should I have?”

There is no set number. Three to five witnesses might be a good starting point to think about because having fewer witnesses might leave the judge with unanswered questions, but having several more witnesses might cause the case to drag out too long. Quality is better than quantity, and keep in mind that many divorce cases have no witnesses (other than the testimony of the two spouses).

“How long will the witnesses be needed to be in court?”

A good rule of thumb is to assume basic witnesses will take about a half-hour to testify. However, witnesses who have a great deal of information to share could be called to testify for much longer. Also, keep in mind that the time that a witness is actually on the stand is one one part of the equation. Because parties to divorce cases and even the judge don’t know exactly what the trial schedule will look like, witnesses may have to sit out in the hallway for hours while waiting for their turn on the stand. For this reason, it’s often good advice for witnesses to bring a book or something to do while waiting.

“What if my witnesses can’t or won’t come to court?”

Many times witnesses are reluctant to come to court because the don’t understand the process, they don’t want to get involved with the process, they don’t want to get in the middle of something as messy and emotional as a divorce, they don’t want to miss work, and/or they cannot come to court due to a health or medical reason. You have to weigh the time, effort, and inconvenience of having your witnesses come to court to testify about important aspects of your case, with their needs.

“If my witnesses can’t come to court, can they send in an affidavit, a letter, or call in by phone?”

This is a more complex question which requires a nuanced and qualified answer from an attorney. It’s really beyond the scope of this article. However, as a general rule, witnesses cannot testify by letter or affidavit. In some cases, with prior court approval, witnesses can testify by phone. It’s very important to keep in mind that testimony is often much more persuasive and carries much more weight with the court if it comes from a live witness, in court. Experts often tout non-verbal communication as being more important or at least equally important as verbal communication, and you can’t see facial expressions and body language through letters, affidavits, or phone calls.

“What if my witnesses say they’ll come, but don’t show up?”

When selecting witnesses for your divorce case, you obviously want to take into account their reliability, and to also check-in with them with regard to scheduling. In some situations, if a subpoenaed witness fails to show for trial, the judge will continue to the case to a later date to accommodate the witness if there was a valid reason for their non-appearance. But in some cases, the judge will simply finish the case without the benefit of hearing from the witness who failed to show. In short, your witnesses need to show up on the correct date, at the correct time, ready to testify.

Additional Thoughts on Selecting Witnesses for Your Divorce Trial

Witnesses in divorce cases can come from all walks of life, different educational and professional backgrounds, and from different socioeconomic backgrounds. The key is to select witnesses that can address all of the areas in the divorce case which may be in dispute. Some examples of common witnesses in divorce cases:

Day care providers
Babysitters
Teachers
Pastors, priests, and rabbis
Other parents
Extended family members
Friends of the family
Doctors
Nurses
Counselors
DHS workers
Law enforcement officers
Realtors
Bookkeepers and CPAs
Financial experts
Vocational experts
Appraisers

If your divorce trial involves issues of child custody, the following witnesses may be important:

Professional (expert) or civilian (lay) witnesses who have information on which parent has historically been the primary caretaker of the children.
Professional (expert) or civilian (lay) witnesses who have information on which parent would be best suited to make major educational, medical, religious, and legal decisions on behalf of the children.
Professional (expert) or civilian (lay) witnesses who have information or evidence showing proper parenting by one parent, and possible harmful, neglectful, or indifferent parenting on the part of the other parent. For more information on this topic generally, please see our page which discusses the factors Oregon’s courts use for determining legal custody.

If your divorce trial involves issues of parenting time, the following witnesses may be important:

Professional (expert) or civilian (lay) witnesses who have information on what’s in the best interest of the children in terms of spending time with each parent, and how much.
Professional (expert) or civilian (lay) witnesses who have information on the attitude and interest of the parents in spending time with the children.
Professional (expert) or civilian (lay) witnesses who have information or evidence showing proper parenting by one parent, and possible harmful, neglectful, or indifferent parenting on the part of the other parent. For more information on this topic generally, please see our page which discusses parenting plans in Oregon.

If your divorce trial involves disputes concerning child support, the following witnesses may be important:

Witnesses with information on the monthly income of each parent.
Witnesses with information on the monthly expenses of each parent.
Witnesses with information on the earning capacity of each parent (if one of the parents is not reporting their true earning potential, or if that parent is working less in order to show a lower level of income).

If your divorce trial involves disputes concerning spousal support, the following witnesses may be important:

Witnesses with information on the monthly income of each parent.
Witnesses with information on the monthly expenses of each parent.
Witnesses with information on the earning capacity of each parent (if one of the parents is not reporting their true earning potential, or if that parent is working less in order to show a lower level of income).
Bookkeepers or accountants who can testify as to trends in income generation of the parties throughout the marriage.
Education experts who can testify as to what courses, degrees, or licenses a parent might need to step-up into a better job and increase their income.
Vocational experts who can testify as to what someone could earn in a given job position or job title.

If your divorce trial involves disputes concerning personal property or debts, the following witnesses may be important:

Professional (expert) witnesses who can appraise or estimate the value of personal property in dispute (e.g. vehicles, furniture, electronics, appliances, tools, art, collectibles, etc).
Witnesses who can testify as to the location and condition of personal property.
Bookkeepers or accountants who can testify as to the debts of the parties, and how they’ll be affected over time by interest.

If your divorce trial involves disputes concerning real property, the following witnesses may be important:

Professional (expert) witnesses who can appraise or estimate the value of the real property (e.g. a Realtor or professional appraiser).
Professional (expert) witnesses who can testify as to the amount of work and cost involved in improving or maintaining the home in order to maximize sale potential.
Witnesses who can testify as to what each spouse contributed to the home (e.g. financial contributions, home improvements, home making, etc).
Bookkeepers or accountants who can testify as to the equity in the home, past payments, and tax benefits to owning the home during the marriage and potential tax liabilities when selling the home.