How the Rules of Evidence Work in Your Divorce Case

Knowing something is true or believing something is true does not necessarily mean that you can prove that it's true in a court of law. This can be quite frustrating to somebody going through the divorce process, or any court process for that matter. "My spouse does drugs, and therefore should not be allowed to have custody of our children." "I used my inheritance as a down payment on our house, and should get that back." "I shouldn't have to pay spousal support because my spouse can work, but chooses not to."

The first question is how do you really know these things? Have you personally witnessed your spouse use drugs? If so, you may testify to that. You are allowed to testify to matters that you have personally witnessed. However, if you only know because one of your spouse's friends has told you, then your knowledge is not personal knowledge. It is hearsay, and you cannot testify to it. You have to bring your spouse's friend to court, and have her testify as to what she knows. However, if she hasn't personally seen it either, but only says your spouse uses drugs because she heard it from yet another friend, then her testimony is hearsay as well. Perhaps your spouse has actually told you that he uses drugs. You may then testify in court as to what your spouse told you. While what he has told you is hearsay evidence, it also qualifies as a 'party opponent admission', which is an exception to the hearsay rule. Of course, then your spouse may deny that he ever said that. So, the judge is then faced with a he said, she said situation.

"I used my inheritance as a down payment on our house": Okay, but when? When did you receive your inheritance? Once you received it, did you immediately write a cashier's check or money order directly to person selling the house, or did you deposit it in the joint bank account where it sat for a few months, or even longer, before you and your spouse then purchased the house? If the latter, then to prove that you used your inheritance to purchase the house, you have to show documents evidencing receipt of your inheritance, bank statements from the account in which you deposited, and documents showing the down payment on the house. Bank records themselves are hearsay documents, so, technically, you must get the bank records authenticated by the custodian of records from the bank. This is another exception to the hearsay rule, called the business records exception. However, simply having the bank records by themselves is not sufficient, if your spouse's attorney wishes to be a pain in your neck. Alternatively, you can hire a forensic accountant as an expert witness who can testify at trial as to the transaction. Expert witnesses are allowed to offer testimony at trial based upon hearsay documents, assuming that the expert witness usually relies on such types of documents in his profession. For example, X Rays are hearsay documents, but doctors rely upon them all the time, so a doctor may testify as to her opinion based upon her review of an X Ray.

"My spouse can work, but chooses not to": This is a frequent complaint. When it comes to child support, both parents are obligated to provide financial support for their children, and when it comes to spousal support, the supported spouse must make diligent efforts to become self supporting. Presumptively, the Court believes everyone is capable of working, at least under the age of 65. However, if your spouse has not worked in years, what kind of job can he or she obtain, and what kind of income would he or she get from that job? In order to provide evidence to the judge as to your spouse's ability to work, one method is to have your spouse undergo a vocational evaluation. The vocational evaluator will be an expert in that field, and will then be able to testify on your behalf as to what kind of job your spouse may be able to obtain, the time it will take to train for that job, and the income he or should could expect to receive. Another method of proving your spouse's ability to work is to provide the Court with your spouse's resume, including his or her educational background, and prior work experience, and then provide the Court with help wanted ads from the newspaper or internet showing that there are employers who are looking to hire somebody with your spouse's qualifications. Help wanted ads are not considered hearsay. However, the problem with help wanted ads is that many of them do not list how much the job will pay. So, while the judge may now know that there are jobs out there for your spouse, the judge will not know what kind of income your spouse will receive from that job. So, the vocational evaluation is the better way to go.

Most of the examples above involve the hearsay rule. However, there are quite a few other rules of evidence that apply. Relevance is a big one. California's a no fault divorce state, so testifying that your spouse may have cheated on you is not relevant to the issue or whether or not he or she should get support, or custody of the children... as hurtful as that might be to you.

Even if something might be relevant, a judge may still rule that it's not admissible evidence because it takes too much of the Court's time, and the undue consumption of time outweighs the relevance of that information. So, for example, while the fact that your spouse may have a drug problem would certainly be relevant to the issue of whether or not he or she should have custody of the children, testifying as to an incident of drug use from over ten years ago may not be worth the Court's time, and for that reason, the judge may not want to hear that testimony.

A lot of people like to use character evidence, particularly when child custody is at issue. "He's a great father". While this statement is certainly nice, it doesn't actually tell the judge anything useful. How does the witness who made this statement know that this other person is a great father? This statement is inadmissible due to lack of foundation because we don't know how the witness knows that the other person is a great father. So, to clarify the witness's testimony, he then explains that he is a close friend of the father, and has witnessed the father interact with his children on numerous occasions, such as birthday parties and barbeques. The Court may then accept that testimony because it may help to establish the father's emotional bond with the children, which is certainly relevant to the issue of child custody. But broad statements about the father's greatness will not work. Character evidence is tricky, and may only be used in specific circumstances.

Privileges are another category of issues covered in the Evidence Code. What somebody tells his or her doctor, clergyman, psychotherapist, or lawyer is privileged communications, and is therefore confidential, with certain exceptions. You can't make your wife's therapist testify as to what she discussed in therapy, even if your wife may have told her therapist that she has been hiding thousands of dollars in community funds in some bank account in the Bahamas. Privileges can be waived, however. If your spouse says he is too disabled to work, he is raising the issue of his medical condition. In so doing, he's waiving his doctor patient privilege, entitling you to obtain information regarding his disability from his doctor.

So, generally, the lesson of this blog is that if you want to go to trial, don't expect that you'll be able to say whatever you wish to say, and be sure that whatever you're seeking to gain from going to trial is worth the time and expense of gathering admissible evidence to prove your case. I always endeavor to educate my clients on the process of going to trial, and the costs involved.