Family Law Evidence
Jeff J. Horn, Family Trial Lawyer
What is family law evidence? Authentication and Hearsay Exclusion Explained. Divorce Lawyer | Family Law Evidence Problems | Irrelevant Family Law Evidence | Debts and Relevant Family Law Evidence | Marital Fault in Family Law Cases.
Family law evidence typically includes documents, financial information, expert reports, and schooling information. All evidence must be authenticated for it to be admitted into evidence. Hearsay is an out–of–court statement offered for the proof of the matter asserted, and is excluded from family law evidence. Relevance is key in family law cases: debts incurred without knowledge and consent are relevant, while marital fault is rarely relevant.
Virtual trials mean your evidence is a picture, an audio or video. This typically includes documents and financial information. For child related issues, expert reports, schooling information are typically marked for identification or admitted into evidence. Evidence for economic issues requires disclosure. Most frequently income, assets and debts are submitted to the family court
Family law evidence problems
Authentication – It is what it is!
All evidence must be authenticated. This means that the parties must agree it is what it purports to be. Alternatively, the proponent of the exhibit must identify the accuracy and source of the exhibit. For example, a photograph – a witness testifying and authenticating the photograph must state it is accurate. “The photo depicts what I observed” Furthermore the proponent of the picture needs to be able to add when it was taken and at what vantage point.
Oftentimes, witnesses speak to an exhibit that lacks sufficient authentication. No authentication means that exhibit is excluded from evidence.
Hearsay – Someone told me …
Family law evidence based upon what someone else said out of court may be hearsay. NJRE 801 – Hearsay.
Hearsay is an out of court statement offered for the proof of the matter asserted.
For instance, a police report is offered as family law evidence. However, the police officer is not called to testify. The police report states that Mr. Lincoln was shot at the Ford’s Theater on April 14, 1865. Although we know it is true, that police report does not come into evidence unless the authoring police officer testifies in court.
Hearsay is excluded from family law evidence.
However, a witness can testify that they had a conversation with an out of court declarant. Although they cannot state what the out of court person said – the witness is totally free to testify to their next action.
For example, I met with my doctor. As a result, I went to the emergency room. Because I do not say what the doctor said, the actions are not hearsay. In evidence.
Contrast with:
I went to the doctor who told me I have three (3) months to live. Objection hearsay – not admissible evidence.
Irrelevant family law evidence
Family law cases can encompass your entire life. Best interests of the children are always at stake. Alimony and equitable distribution can make or break you financially. Everything matters. First, you begin testifying about buying the marital home 25 years ago. You and your spouse generally disagree as to who found the home and made the deal with the seller. Being right is important to you. Conversely, the family law judge needs relevant and imminent facts. No one cares who found the house 25 years ago.
Objection irrelevant!
Change the facts
You and your spouse purchased a house for $1 MILLION. $500,000 was put up as a down payment. All of the money came from gift from your family. Now, (6) months later, the relationship has unraveled. Proof of the source of the $500,000 is highly relevant to equitable distribution of the marital home.
Debts and relevant family law evidence
Frequently, family law cases address overwhelming family debts. Just as frequently, parties argue over who incurred the – and who knew about. Shockingly, most Family Court judges give little weight to evidence that one spouse knew or did not know about. Instead, family court judges want the facts. Again, it may feel a certain way to you. Allocating debts by way of a family court proceeding may be – – family law judges may find the mission allocating that between parties based upon so-called knowledge as irrelevant. Mere ignorance does not translate to exoneration of family debts.
The relevance test is…
When was the debt incurred? And, for what purpose? Certainly, debts incurred for work strictly extra marital purposes can be excluded. That is different from debts incurred without specific knowledge and consent.
A word on marital fault in a family law case.
Proof of fault is rarely relevant family law evidence. Unless fault equals financial completion or dissipation, fault is irrelevant. Warning, this does not mean fault is irrelevant if one spouse stole money – that makes for interesting family evidence battles. Here is one case that set the standard on marital fault. Mani v. Mani.
Photo by James Jeremy Beckers on Unsplash