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The Divorce Encyclopedia

Term Definition Evidence - documents, testimony or other informational material offered to the court to prove or disprove allegations in the pleadings.
Application in Divorce In an court action, both the plaintiff and the defendant may enter into the record any document, testimony or other information that supports his or her position, that is to say, his or her case.

Generally speaking, there are two forms of evidence -- direct and indirect. Direct evidence is eyewitness testimony. Indirect evidence is circumstantial, which means it calls a conclusion on the part of a jury or of a judge. Circumstantial evidence can be very persuasive: as Henry Thoreau said, if someone finds a trout swimming in a bucket of milk he can be persuaded that someone put the fish there because a trout does not get in a bucket of milk by itself. (Contrary to what many people believe, circumstantial evidence is not inferior to direct evidence.)

Although wrongfully or illegally obtained evidence may be excluded from criminal or quasi-criminal actions, such evidence may be admissible in civil actions, including divorce. The general rule of admissibility in civil actions is based on the fact that the Fourth Amendment limits government conduct, not the conduct of private parties. However, while illegally obtained evidence is not inadmissible, some courts have limited its use under public policy grounds or as a sanction against an attorney’s alleged participation.

Evidence cannot be considered by a court unless it is admissible under the rules of evidence.

In divorce actions, evidence might include custody evaluation reports, character testimony, the reports of forensic accountants.

The admissibility and relevance of prior bad acts in child custody cases taxes a court’s ability to separate fact from fiction. In child custody cases, evidence of physical and mental abuse and abuse of drugs and alcohol may be considered in awarding custody. Evidence of adultery may be considered, but only if the courts believe that it has adversely affected a child.

In general, the factors that effect the admissibility of evidence in child custody cases have been termed "the three Rs": remoteness of the alleged bad acts, the repetition of these actions, and the rehabilitation from this behavior. Bad actions that are remote in time from the case, or those that have not happened frequently, or those from which the party has shown evidence of rehabilitation are less likely to have a detrimental effect on his or her position.

Rules of evidence do not apply to temporary orders since they are without prejudice at a trial.

See Rules of Evidence; Trial.

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