Getting Your Story to a Judge

Divorce and family law proceedings can be emotionally charged and legally complex, particularly when disputes arise over issues such as property division, child custody, spousal support, or allegations of misconduct. Litigants have been living their story for years, but a judge knows nothing about the situation and will be hearing two sides for the first time.

Evidence plays a crucial role in influencing the court’s decisions, and understanding the potential challenges surrounding evidence is key to effectively navigating these cases. Below are some of the primary evidence-related issues that arise in divorce cases, along with strategies to address them so that your judge can hear the important facts of your story.

Admissibility of Evidence

Courts typically have strict rules about what evidence is admissible. For instance, hearsay—statements made outside of court by people who are not parties to the divorce—is generally inadmissible unless it falls under an exception. In other words, you cannot say, “my best friend saw my spouse gambling large sums of money at the casino.” The friend who actually observed the spouse must testify as to what was seen. Documents must be authenticated so that a judge is satisfied that the information it contains is genuine.

Similarly, evidence must be relevant to the issues at hand. For example, information about a spouse’s personal habits may not be admissible unless it directly impacts child custody or marital finances. So, if the spouse has been engaged in an extramarital affair, this may not be relevant to the issue of whether the parent is capable of caring for a child.

Tips for Avoiding Admissibility Issues:

Ensure all evidence is directly related to the claims or defenses in your case. For every statement, position, and information you want to provide to support your position, make sure that your evidence is accurate and can be verified. Provide your attorney with the information as soon as possible so that there is time to get what may be needed.

For instance, if a spouse has taken large sums of money from an account, the attorney will need time to get certified copies of bank statements by way of subpoena. This can take time, particularly if the bank is out of state.

Work with your attorney to verify that the evidence complies with local rules of Evidence.

Digital Evidence

In today’s digital age, emails, text messages, social media posts, and even GPS data are commonly presented as evidence. However, authenticity and privacy concerns can complicate their use. Courts may require proof that digital evidence has not been tampered with or taken out of context.

There is something called “The Completeness Doctrine” which means that a single text may not suffice, and the entire thread is necessary. Moreover, a screen shot may not be enough, and an attorney can evaluate if there are other steps that should be taken to get the evidence to the judge. This often includes video evidence such as videos taken with a smart phone, or police body camera footage.

Tips for Avoiding Digital Evidence Issues that can Prevent Your Proofs from Being Admitted

Preserve original digital files with metadata intact.

Avoid accessing or presenting information obtained through illegal means, such as hacking into a spouse’s email account.

Be cautious about your own online activity during divorce proceedings.

Spoliation of Evidence

Spoliation refers to the destruction or alteration of evidence that is relevant to a legal case. In divorce cases, this might involve deleting incriminating text messages or destroying financial records. Courts take spoliation seriously and may impose sanctions, including drawing adverse inferences or awarding legal fees to the other party.

Tips for Avoiding Spoilation of Evidence Issues:

Avoid deleting, altering, or destroying any potential evidence, even if you believe it may harm your case. Give the evidence to your attorney and let them help you determine the best way to address the issue. The other side likely has the same information, and if relevant, will ask that it be considered.

If you suspect your spouse is engaging in spoliation, notify your attorney immediately and consider seeking a court order to preserve evidence.

Financial Evidence

Financial disputes are a central issue in many divorces, and accurate financial evidence is critical. Hidden assets, underreported income, or discrepancies in financial disclosures can lead to significant legal challenges. Common forms of financial evidence include tax returns, bank statements, credit card records, and property appraisals.

Tips for Avoiding Issues with Financial Evidence

Be thorough and honest in disclosing your financial situation.

When possible, obtain statements and records directly from financial institutions. They will most likely be accompanied by a certification of the accuracy and authenticity of the records, which is often admissible.

If you do not have tax returns, the IRS can provide a transcript of the entries on the returns, which can be helpful.

Use forensic accountants or financial experts to uncover hidden assets or evaluate complex financial arrangements when necessary.

Expert Testimony

In cases involving contested child custody, property valuation, or allegations of abuse, expert testimony can be crucial. Psychologists, appraisers, and other professionals can provide opinions that carry significant weight in court. However, opposing parties may challenge the qualifications or conclusions of your experts.

Tips for Avoiding Issues with Expert Testimony

Choose experts with strong credentials and experience in family law cases.

Ensure your expert’s testimony is backed by solid evidence and methodology.

Privileged Communications

Certain communications are protected by legal privilege and cannot be used as evidence. Examples include conversations with your attorney or therapist. However, privilege can be waived if confidentiality is breached, such as by discussing the communication in public or sharing it with a third party.

Tips for Avoiding Issues with Privileged Communications

Keep privileged communications confidential. It is tempting to speak to your closest confidants about your case, but this is dangerous if it is something that you do not want disclosed.

Avoid discussing legal strategies or sensitive topics in public or online forums. This is an excellent way to anger a judge.

Bias and Credibility Issues

The credibility of witnesses and evidence can significantly impact a case. A history of dishonesty or bias may lead the court to question the reliability of a person’s testimony or evidence.

Tips for Avoiding Bias and Credibility Issues

Present your case with honesty and transparency – the good, the bad, and the ugly. It will likely come out anyway, so make sure it is with your narrative.

Avoid exaggerating claims or presenting questionable evidence, as this can undermine your credibility.

Make sure that no witness who is testifying on your behalf has skeletons in their closet that could have a negative impact on your case.

Open and honest communication with your lawyer is key to being able to give the judge your story in the way you want it told.