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The Divorce Encyclopedia
Burden of Proof

Term Definition Burden of Proof - the standard of proof.
Application in Divorce In fault divorce actions, the burden of proof is what one spouse must prove to the court against claims of the opposing spouse. The claims must be supported with sufficient evidence.

The burden of proof is the responsibility of a party in a case to demonstrate by the amount and quality of evidence and the required degree of persuasion.

Meeting the burden of proof is the action of a trial, and this happens within the bounds of practice and procedure and the rules of evidence. In this, a party must convince a judge or a jury of the merits of the case.

The required degree of persuasion -- beyond a reasonable doubt for criminal trials and clear and convincing evidence or preponderance of evidence for civil actions -- is the standard.

Beyond a reasonable doubt is the highest and most demanding standard for burden on proof and is required in criminal cases. This standard is sometimes described as "entirely convinced" or "satisfied to a moral certainty," and it must be met to deprive a person of life or liberty.

Clear and convincing, a less demanding threshold, requires "a firm belief" or "reasonable certainty" of the truth of claimant’s allegations in the mind of a judge or jury. As such it is a middle ground, below reasonable doubt and above preponderance of evidence. Clear and convincing is the standard required to set aside a prenuptial or antenuptial agreement and in some paternity actions.

Preponderance of evidence, the standard in divorce actions, means that it is more probable than not that the litigant is right and that his or her allegations are true. Preponderance of evidence is the easiest to meet. This means that the burden of proof for the litigant is the least demanding. For example, a plaintiff’s claim that her husband dissipated their marital assets in the casinos of New Jersey requires much less evidence -- and has a lower burden of proof -- than a criminal charge that he shot the blackjack dealer.

Sometimes, the term case in chief is used to describe the part of trial in which each party, respectively, presents his or her evidence, facts and issues to meet the appropriate burden of proof in the case. The case in chief is the meat of the case. In uncontested divorce actions, there is no presentation of cases in chief because there is no proof is necessary to provide to the court since both parties agree to what has been presented to the court.

However, within contested cases, the phrase burden of proof frequently comes into play in various phases of the action, particularly in divorce cases where so often the allegations turn on he said-she said claims.

For example, in the case of dispute between spouses about whether a gift from one to the other is marital or separate property the courts place the burden of proof on the recipient, who must demonstrate intent by the donor and delivery and acceptance by himself or herself -- the common-law definition of a gift.

In divorce actions where, for example, domestic violence is at issue, courts frequently issue an order to show cause, which is a court order requiring a party to appear in court on a specific date and time to explain why the court should not take a particular action. In these cases, the burden of proof is on the person who is ordered to show cause. He or she must appear and present to the court a reason why a particular order or decree should not be confirmed.

When the parties of divorce dispute the distribution of retirement benefits, burden proof may focus on whether or not a party retired voluntarily or involuntarily. In the distribution of retirement benefits, a party may claim that retirement was taken to avoid support and the other side may claim retirement was taken for health reasons or was a forced retirement. In this case, when a retiree argues that early retirement is being taken for health reasons, the burden of proof is on him.

In a similar fashion, the claims of ownership of stock options as separate property frequently are part of divorce actions. Vested mature stock options received during a marriage are marital property and subject to distribution even if they are not exercised until after the parties are divorced. Unvested options, however, are harder to classify because they substitute for future rather than past compensation, and they may be considered separate property. In a divorce dispute, the burden of proof is on the party asserting that options are separate property.

Property settlements sometimes create unfavorable tax consequences for parties who may admonish the court to consider these outcomes in the distribution of property. In distributing property, courts consider the tax consequences when it can be demonstrated that the distribution creates a tax event and that the amount can be reasonably determined. In general, if the sale of an asset is not necessitated by the divorce and voluntary, tax consequences are not considered. The burden of proof, however, is with the party asserting that the consequences should be considered.

The active or passive appreciation of assets subject to distribution also necessitates that one party meet a burden of proof. Courts look on appreciation as a result of marital efforts as active, and appreciation as result of market forces or third-party as passive. This sometimes happens when a homemaker mother faces the burden of proving that the indirect services aided the owning spouse by freeing him from domestic duties. In some states, the burden of proof is upon the spouse who claims the appreciation in active; another group of states places the burden on the spouse who claims the appreciation is passive. The claim of a wife who gave indirect homemaker services -- put simply, being a stay-a-home mother -- may face a steep climb.

Divorce actions sometimes involve allegation of dissipation of marital assets. Generally, a asset is considered dissipated if 1) the asset is lost; 2) the loss happened upon and after the breakdown of the marriage; 3) the guilty spouse controlled the asset at the time of the loss; and 4) the loss was not incidental to a valid marital purpose. In the case of the first three elements, the burden of proof is on the spouse alleging dissipation; in the case of the last element, the burden is on the spouse to prove a valid marital purpose.

If a party asks the court the make an attorney fee award, the burden of proof is on the party asking the court to make it. This happens when courts consider the conduct of the parties in awarding attorney’s fees in divorce actions, and the actions of parties who raise unnecessary issues or raise issues in bad faith may be sanctioned with attorney fees.

In uncontested divorce, no claims requiring proof are made.

See Beyond a Reasonable Doubt; Clear and Convincing; Preponderance of Evidence.

See also Interspousal Gifts; Order to Show Cause; Retirement; Stock Options; Tax Conseuqences; Appreciation of Assets; Attorney Fee; Dissipation of Assets; Standard of Evidence.

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