Evidence 101 in Divorce Trials
"Dad is a drug dealer" "The Mother only cares about money" "She stole from her boss in another state" "He makes income under the table" It is so frustrating to know something and not be able to use those facts to help your divorce case.
For the moment let's forget why the rules are there, who cares - you are stuck with them.
The following is a list of some of the rules of the courtroom game.
Keep in mind as with every legal rule, there are exceptions to exceptions to exceptions.
This is just the basics.
1.
Hearsay.
Here is the deal: typically a witness cannot repeat what someone else said.
Big exception in divorce cases is that a witness can repeat what the other party said.
Lots of exceptions, but usually - no repeating what child, teacher, boss, cop or neighbor said.
2.
Documents.
The judge cannot consider any piece of paper that is not put properly into evidence.
Lots of times in domestic cases the two lawyers agree to let each other put all kinds of documents into evidence.
If not, a witness who is qualified to put that document into evidence must do so.
To make it even trickier, a document that is offered to prove what is written is also hearsay.
So some documents just cannot be put into evidence (like a letter written by an ex of the other party to talk about how bad they are).
3.
Relevance.
Evidence must be relevant to an issue at trial.
This most often comes up in divorce cases when one party really wants to let the judge know about crummy things the other party did: affairs, not doing housework, having an ugly tattoo...
you get the picture.
In Florida we have "no fault" divorce because judges don't want to listen to spouses bad mouthing each other.
Sometimes this will come down to the creativity of the lawyer and the issues in the particular case.
For example, even with no fault divorce, if one party used marital money (including their own paycheck) on an affair, this is dissipation of marital assets and is admissible in court.
Or if one party is asking for more alimony because of the special efforts they made to the marital relationship, not having taken care of the kids and household as agreed might be admissible to defend against that.
4.
Witnesses.
Having a witness who knows about stealing, smoking pot, lying, child abusing, swearing, or anything else is meaningless unless that person is willing to COME TO COURT and testify under oath to those facts from their personal knowledge.
Letters to the judge, worthless.
Having a witness who might come to court if they are not busy, close to worthless.
Will come if subpoenaed and will grudgingly tell the truth if asked under oath...
scary, but now we are getting somewhere.
There is nothing worse (well, not a lot of things) than spending thousands of dollars to get your case ready for court only to find out that the bombshell facts you wanted to lay on the judge cannot be told.
Better to be considering at the front end what you really have, what you will need to develop to make your point, and how to compare the real strength of your case to any settlement offer you may make.
Diana
For the moment let's forget why the rules are there, who cares - you are stuck with them.
The following is a list of some of the rules of the courtroom game.
Keep in mind as with every legal rule, there are exceptions to exceptions to exceptions.
This is just the basics.
1.
Hearsay.
Here is the deal: typically a witness cannot repeat what someone else said.
Big exception in divorce cases is that a witness can repeat what the other party said.
Lots of exceptions, but usually - no repeating what child, teacher, boss, cop or neighbor said.
2.
Documents.
The judge cannot consider any piece of paper that is not put properly into evidence.
Lots of times in domestic cases the two lawyers agree to let each other put all kinds of documents into evidence.
If not, a witness who is qualified to put that document into evidence must do so.
To make it even trickier, a document that is offered to prove what is written is also hearsay.
So some documents just cannot be put into evidence (like a letter written by an ex of the other party to talk about how bad they are).
3.
Relevance.
Evidence must be relevant to an issue at trial.
This most often comes up in divorce cases when one party really wants to let the judge know about crummy things the other party did: affairs, not doing housework, having an ugly tattoo...
you get the picture.
In Florida we have "no fault" divorce because judges don't want to listen to spouses bad mouthing each other.
Sometimes this will come down to the creativity of the lawyer and the issues in the particular case.
For example, even with no fault divorce, if one party used marital money (including their own paycheck) on an affair, this is dissipation of marital assets and is admissible in court.
Or if one party is asking for more alimony because of the special efforts they made to the marital relationship, not having taken care of the kids and household as agreed might be admissible to defend against that.
4.
Witnesses.
Having a witness who knows about stealing, smoking pot, lying, child abusing, swearing, or anything else is meaningless unless that person is willing to COME TO COURT and testify under oath to those facts from their personal knowledge.
Letters to the judge, worthless.
Having a witness who might come to court if they are not busy, close to worthless.
Will come if subpoenaed and will grudgingly tell the truth if asked under oath...
scary, but now we are getting somewhere.
There is nothing worse (well, not a lot of things) than spending thousands of dollars to get your case ready for court only to find out that the bombshell facts you wanted to lay on the judge cannot be told.
Better to be considering at the front end what you really have, what you will need to develop to make your point, and how to compare the real strength of your case to any settlement offer you may make.
Diana
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