How the Rules of Evidence Work in Your Divorce Case

What Is Admissible Evidence in Family Court?

Courthouse 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. We often hear our clients say things like, "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," or "I shouldn't have to pay spousal support because my spouse can work, but chooses not to." While all those things may be true, proving that they're true in a court of law can be very difficult. Below we discuss some examples of what is admissible in court and what is hearsay in court, as well as some exceptions to hearsay rules. 

Admission by Party Opponent

Example: "My spouse does drugs, and therefore should not be allowed to have custody of our children."

When clients come to us with these kinds of statements, the first question we ask 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 would have to bring your spouse's friend to court and have them testify as to what they know. If your spouse actually told you that he or she uses drugs, then you may then testify in court as to what your spouse told you, as this qualifies as 'party opponent admission', which is an exception to the hearsay rule.

Business Records Exception

Example: "I used my inheritance as a down payment on our house, and should get that back."

When presented with this situation, our first question is 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 in order 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. 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 on them all the time, so a doctor may testify as to her opinion based upon her review of an X-Ray.

Vocational Evaluation

Example: "My spouse can work, but chooses not to."

This is a complaint we hear frequently. 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. The Court believes everyone under the age of 65 is capable of working. However, if your spouse has not worked in years, new questions come into play for the court - what kind of job can he or she obtain, and what kind of income would he or she get from that job? So how do you go about providing evidence to a judge that proves your spouse's ability to work?

  • 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 expect to receive.
  • Provide Your Spouse's Resume: include 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 in general, the vocational evaluation is the better way to go.

Relevant Evidence

Example: "She cheated on me, so she shouldn't get spousal support."

Relevance is another important factor when presenting evidence in court. California is a no-fault divorce state, so testifying that your spouse may have cheated on you is not relevant to the issue of whether or not he or she should get support or custody of the children.

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.

Character Evidence

Example: "He's a great father, so he should get custody."

A lot of people like to use character evidence, particularly when child custody is at issue. Witnesses will often say things like, "He's a great father"- while this statement is certainly nice, it doesn't actually tell the judge anything useful. How does the witness 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 or she would have to explain that he/she is a close friend of the father, and has witnessed the father interact with his children on numerous occasions. 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. For this reason, character evidence is tricky and may only be used in specific circumstances.

Privileged Evidence

Example: "My wife told her therapist that she's hiding community funds in another bank account."

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.

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. At the Law Offices of Evan Samuelson, we always endeavor to educate our clients on the process of going to trial and the costs involved.


If you need help with a family law case, don't hesitate to contact us immediately! We're here to help!


Categories: