What Evidence Can You Use in a Divorce Trial?

During the course of undertaking something serious as a divorce, there may come a time when the settlement process breaks down and a trial will be necessary.  Only properly introduced evidence may be considered at trial. Evidence comes in  two primary forms, physical and testimonial,  and will have to be properly admitted so the Court may consider it when making its ruling.  Physical evidence includes documents, bank statements, pictures, and other physical items, and testimonial is sworn testimony under oath by a witness.

There is a main concern of either type of evidence to overcome which is the hearsay rule which prohibits many documents and some testimony from being introduced. While an in-depth review of hearsay is beyond the scope of this blog, it is a very important aspect for the trial attorney to address prior to and during trial.

 

Lets look at testimonial evidence more closely (and again that is where the sworn testimony of a witness  is made under oath), and only non hearsay, relevant evidence can be considered by the Court. As an example, in a divorce case where children  are involved, opposing council may ask certain questions such as: What actions have the parent(s) undertaken to establish him/her as the primary caregiver?  Opposing counsel may object to anything said, and the Judge will rule on the objection before weighing the answer, and if the testimonial evidence is allowed, the Judge will determine it's weight and credibility.

 

Counsel may also ask questions when money is involved, such as: Where did certain income of a party come from, or why wasn't certain income reported?  How much overtime did a party have available to him/her? Where there perks such as bonuses or a company vehicle included? Whether any property, real or personal, has been conveyed, obtained, given away or expected to be obtained in a future inheritance?  If conduct of a Party is involved, then questions such as allegations of abuse, adultery, or other misconduct may be asked.

Your answers to these questions are testamentary evidence that the court may consider when making a decision.

To further explain the trial process where evidence can or may be admitted, the following are more detailed examples:

 

1. Text messages, Social Media Postings.  and Emails. Conversations that the spouses exchanged with each other, or others,  may be useful in proving your case; however, the messages need to be authenticated and properly preserved in order to be used at trial and not hearsay or it must be an exception to the hearsay rule.

 

2. Family calendars. These sorts of calendars will be relevant to prove dates and times of events and family activities and amount of time spent with the children, and again  th

 

3. Witnesses may be the Parties themselves, family members, friends individuals with personal knowledge of a subject or expert witnesses.

5. Photographs. The old adage of a picture is worth a thousand words is often true during trial .  Pictures need to be authenticated, but the process is often easier to accomplish then introducing other forms  of evidence such as  texts or social media postings.

 

6. Financial records. These usually are freely exchanged between spouses during the divorce process through discovery, but they can also become problematic or expensive to obtain from an uncooperative spouse. Accordingly accessing  financial records prior to the divorce commencing may be beneficial and would include:

  • Bank statements,

  • Tax returns,

  • W-2’s,

  • Paystubs,

  • Retirement account statements, and

  • Credit card statements.

7. Other records.  Medical records, educational records, religious affiliations may be important  under certain circumstances. ​