James R. Balmforth: Tooele Utah Divorce Attorney

If you are living in Tooele Utah and you are seeking a divorce, seek the assistance of an experienced Tooele Utah divorce lawyer.
Americans in particular have examined divorce from every angle, often reproaching themselves and their tension-laden, urban, industrial society for making divorce a widespread American phenomenon. The historical record, however, indicates that contemporary American divorce is more than a recent outgrowth of a troubled modern society. American divorce has a long and venerable history: Puritan settlers first introduced it in the American colonies during the early 1600s. The resulting institution of American divorce was vital, and growing, long before late twentieth- century Americans carried it to its current state.

Many opposed divorce in the past, and many continue to oppose it today. Over the years, critics and opponents of divorce have maintained that marriage is a religious sacrament and a lifetime undertaking. In their eyes, the growth of divorce signaled impending breakdown and disintegration of the American family.

Opponents of divorce usually believed that marriages should be terminated only for the reason stated in the Bible: adultery. As a result, some supported restrictive divorce statutes stipulating only adultery as a ground for divorce, while others were willing to accept other limited grounds as causes for divorce, such as consanguinity and insanity. Although critics of divorce usually condoned the dissolution of marriage by annulment, not all thought that divorce of bed and board–a limited divorce that prohibited remarriage–was valid. They also strongly opposed migratory divorce, in which divorce- seekers fled strict laws in their own home jurisdictions to obtain divorces in more permissive states, territories, or countries.

On the other side of the divorce issue were people who argued that marriage was a contract, and that parties to any contract had the right to dissolve it. They also maintained that divorce was not the root cause of family disintegration. Rather, they saw divorce as a symptom, not a disease; as a cough is to a cold. Divorce was little more than a sign of turmoil and transition in the American family. Divorce was after the fact; it was the final seal of a couple’s need to separate rather than the reason for their decision. Consequently, divorce was a result rather than a cause of changes in the institution of the American family.

Supporters of divorce often hoped that ease of divorce would eventually lead to equality and reciprocity in marriage. A growing number believed that divorce was a citizen’s right in a democratic society. If divorces were easy to obtain for many causes ranging from adultery to mental abuse, there would seldom be reason for a couple to choose annulment, divorce of bed and board, or migratory divorce as a solution to their problems.
During the formative years of the new nation, a growing number of wives and husbands sought divorces. Then, as now, divorce fit well with American democracy and individualism. Divorce allowed people to make choices and reorder their lives when they deemed it necessary. It also underwrote the pursuit of personal happiness as a desirable goal. Gradually, proponents of divorce began to maintain that divorce was a citizen’s right in democratic America: a civil liberty rather than a social ill.

As the great American debate between the anti-divorce and pro- divorce factions ebbed and flowed, legislators adjusted, and usually expanded, divorce legislation. They sometimes created compromise legislation to please opposing factions, but other times they simply translated prevailing ideas about divorce into law.7 Reforms were often hasty, ill-conceived, and adopted under pressure from whichever faction had momentary influence with a particular group of legislators. As a result, divorce laws and policies often negatively affected the very people they were supposed to help: divorce-seeking men, women, and their children.

Even as Americans debated divorce, it gradually spread and became easier to obtain. Today you can seek a divorce in Utah on many grounds including no fault. Speak to an experienced Tooele Utah divorce lawyer to know the various grounds for divorce in Utah.

In a contested divorce, you may sometimes need to use an expert witness. Expert evidence is a critical component of many types of civil litigation, and some critics have argued that too much “junk science” is admitted into evidence. In their view, juries have often been overly influenced by expert evidence that is not based on a solid scientific footing. Other critics have argued that novel expert evidence or evidence about which reasonable experts could disagree is too often barred from cases and that injured plaintiffs are not compensated as a result. In June 1993, the U.S. Supreme Court responded to the growing controversy about expert evidence by issuing the Daubert decision which clarified the role of federal judges as “gatekeepers” and established a new standard for how judges were to decide whether expert evidence was to be admitted.

Before Daubert, there was not a universally followed standard for determining the admissibility of expert evidence in the federal courts. The two leading approaches were based on relevance and general acceptance in the scientific community. Advocates of the relevance standard argued that expert evidence should be admitted if relevant, as long as the expert was properly qualified and admission would not prejudice or mislead the jury. They believed that “junk science” could be excluded by ensuring that experts were qualified. The general acceptance standard, also known as the Frye standard in reference to the 1923 federal decision that established the principle, required not only relevance and proper expert qualifications but also “general acceptance in the particular field in which it the evidence belongs”. Although the two standards were in conflict, there was little debate about the issue in the 1950s and 1960s because “controversy concerning the validity of scientific techniques did not exist at that time”.

Indeed, when the Federal Rules of Evidence were adopted in the 1970s, they did not directly address the conflict. Rule 702 informs judges that expert evidence should be admitted “[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue” (Federal Rules of Evidence, 1997). This could be read as consistent with either of the competing standards. In consequence, before Daubert, the relevance standard or the general acceptance standard continued to be the guide for admissibility decisions for expert evidence in federal court.

By the early 1990s, many observers felt that the existing system of judicial scrutiny of expert evidence was inadequate. Scientific and technical evidence was playing a more important role in many cases, and the conflict between the relevance and general acceptance standards was increasingly obvious as different federal courts came to different conclusions about the appropriate standard for admissibility. The relevance standard was attacked for letting in too much junk science and leaving assessment of scientific reliability entirely up to the jury. Meanwhile, others argued that the general acceptance standard, by deferring to the current consensus of the expert community, excluded novel science that was quite reliable. By 1992, two experts concluded that the dispute about standards for admitting scientific evidence was the “most controversial and important unresolved question” in federal evidence law.

In Daubert v. Merrell Dow Pharmaceuticals, the Supreme Court explained that the Federal Rules of Evidence had superseded Frye and that general acceptance would not be the sole standard for admissibility of expert testimony. At the same time, the Court also rejected the view that all relevant testimony offered by qualified experts should be admitted. Interpreting Federal Rule of Evidence 702, the Daubert decision directed judges to examine the method or reasoning underlying the expert evidence and to admit only evidence that is both relevant and reliable. No longer can judges defer to the appropriate expert community to determine whether the evidence is reliable, and no longer can judges leave this determination to the jury. The Supreme Court affirmed that trial court judges have not only the “power but the obligation to act as a “gatekeeper’”, screening scientific evidence to ensure that what is admitted is both relevant and reliable. Reliability as used by the Supreme Court refers to “evidentiary reliability—that is, trustworthiness.” For a case involving scientific evidence, evidentiary reliability is based on “scientific validity,” which implies a grounding in the methods and procedures of science.

In Daubert, the Supreme Court provided a list of factors that judges might consider when determining whether a theory or methodology is scientifically valid:
• whether it can be (and has been) tested
• whether it has been subjected to peer review and publication
• the known or potential rate of error
• the existence and maintenance of standards controlling the technique’s operation
• whether it is generally accepted in the scientific community.12
The Supreme Court emphasized that judges are not obligated to consider these factors (which have come to be called the Daubert factors) in every case and that other factors can enter their evaluations. General acceptance in the scientific community thus became only one of many factors that might enter into the assessment.

The Supreme Court confirmed and extended the Daubert decision in two subsequent cases, in General Electric Co. v. Joiner in 1997, the Court examined the proper standard that appellate courts should use when reviewing a trial court’s decision to admit or exclude evidence, concluding that appellate courts should not overturn the admissibility decision of a trial court unless the trial court has abused its discretion. The Court also applied the Daubert approach for evaluating the reliability of scientific evidence, thus reinforcing Daubert. Two years later, in Kumho Tire Co. v. Carmichael, the Court explicitly extended the Daubert approach to expert evidence outside fields narrowly defined as scientific. Kumho clarified that judges are to ensure the relevance and reliability of all expert evidence not just expert evidence in so-called “hard” sciences, such as chemistry and toxicology. The Court also confirmed that the Daubert factors are illustrative of factors that judges should consider in evaluating reliability but are neither mandatory nor exhaustive.

In December 2000, an amendment to Federal Rule of Evidence 702 took effect its aim being to codify and clarify the principles established by the Supreme Count in Daubert. Rule 702 now explicitly state that in order for expert testimony to be admissible, it must be “based on sufficient facts or data,” it must be “the product of reliable principles and methods,” and it must involve reliable application of the principles and methods to the facts of the case (Federal Rules of Evidence, 2000).

Plaintiffs and defendants introduce expert evidence to bolster their case. Whether and what type of expert evidence is introduced depend on expectations about the probability that the evidence will be challenged and, if challenged, the probability that it will be admitted. The decision to propose expert evidence also depends on expectations about the effect the evidence will have on the outcome of the case if it is admitted and the costs of preparing expert evidence and fending off challenges. Parties that challenge expert evidence presumably also weigh the cost of a challenge against the expectation that the challenge will succeed and the effect that exclusion of the evidence will have on the outcome of the case. The expectation that the challenge will be successful is based on perceptions about the standards judges apply in evaluating expert evidence and experience with similar challenges in the past Challengers must also decide the basis on which to challenge the evidence.

Judges decide whether challenged expert evidence should be admitted. They may use three major criteria in making tills decision:
• Reliability: Is the evidence genuine, valid knowledge from the expert’s field?
• Relevance: Will the evidence assist the trier of fact in determining a fact at Issue?
• Qualifications: Does the expert have specialized knowledge in the field relevant to the testimony?
Judges may also take other factors into account in their decision, such as whether the evidence is unfairly prejudicial (Rule 403 in the Federal Rules of Evidence) or is based on privileged information.

Practitioners we interviewed believed that judges usually restrict their evaluations of expert evidence to the issues raised by the challengers, but that they sometimes examine issues not raised by the challengers and occasionally even initiate challenges to expert evidence themselves.

If you believe your divorce litigation requires expert witness, speak to an experienced Tooele Utah divorce lawyer. The lawyer can determine if the expert testimony will meet the requirements under Daubert.

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If you have a question about divorce law or if you need to start or defend against a divorce case in Utah, please call Ascent Law LLC (801) 676-5506. We want to help you.