Divorce Evidence: Is It Required in Your Case?

• What is divorce evidence, and why is it important?
• Which divorce situations require evidence?
• What is discovery in divorce?
• Going to trial
• Common divorce issues that may require evidence
• How to collect evidence against your spouse
• Types of evidence for fault and no-fault divorces
• 7 mistakes to avoid while gathering evidence
• FAQ about divorce evidence
• Getting help with your divorce case

When people think of court proceedings, they often think of evidence. That’s a good thought because sometimes, even divorce proceedings require evidence. While not common, you should know when you might need evidence and what evidence you might need to present. 

What is divorce evidence, and why is it important?

Divorce evidence is tangible proof that can be presented during a divorce to support claims or assertions made by either party. This can encompass many forms of evidence: financial records, emails, texts, pictures, witness statements, and even social media posts. The purpose of the evidence is to paint as accurate a picture as possible of the divorce circumstances. 

Divorce evidence is important because, as with any legal proceeding, what you can prove is what matters. You may have many feelings about your spouse and you may have hunches about wrongdoing. But if you can’t prove your feelings or hunches with tangible evidence, the court won’t take notice. 

Evidence can help influence key decisions in divorce, like child custody, alimony, and property division. For example, evidence of a spouse’s reckless spending could impact the division of marital assets. Similarly, proof of neglect or abuse could sway a judge’s decision on child custody. 

Divorce evidence serves as the cornerstone of your case, providing the foundation for your claims. Evidence substantiates your side of the divorce story.

Which divorce situations require “evidence” (and which do not)?

Uncontested and contested divorce

You may have discussed divorce with your spouse already, and you may both agree that it’s the right choice for your relationship. If you do, you may be amicable and able to discuss how to divide your assets and liabilities. This is an uncontested divorce, one where you agree on everything.

On the flip side is a contested divorce, one where you do not agree on anything – or on most things – and need lawyers and possibly even a judge to divide your assets for you. In a contested divorce, you may need evidence to prove why your request for a division of assets should be granted over your spouse’s. 

Example of evidence in a contested divorce case:

To illustrate, let’s consider the divorce of Amina and Pete. They disagree on key issues like child support and division of assets, making their divorce contested. 

Amina has maintained meticulous financial records showing she has been the primary contributor to their joint savings account. She also saved emails where Pete acknowledged her significant financial contribution to their shared assets. This evidence could sway the judge in her favor when dividing assets. 

Amina also kept a detailed calendar documenting all the times she attended school events for their daughter, took her to doctor appointments, and spent quality time with her. Amina also gathered witness statements from teachers and neighbors attesting to her active involvement in the child’s life. This body of evidence might convince the judge that Amina should receive primary custody of their daughter.

Let’s shift gears for a moment and consider the divorce of Amina and Pete but assume they’ve amicably split and agree on child custody and asset division. While you might think evidence might not be necessary in an uncontested divorce, it can prove beneficial. For instance, if Amina and Pete agree Amina should have primary custody of their daughter, having evidence to support their agreement is crucial. This might come in the form of a marital settlement agreement, or it could simply be a sworn statement by Pete that’s submitted to the court. 

Fault and no-fault divorce

If you and your spouse agree that divorce is the right decision, you’ll probably file for a no-fault divorce. While you’ll still need to state a reason for the divorce – like irreconcilable differences – you’re not alleging that your spouse did something wrong to actively break up the marriage. That’s a fault divorce. 

In a fault divorce, you may be able to get an unequal distribution of assets. But to do that, you’d need to prove your spouse contributed to the end of the marriage by presenting evidence. You may use evidence of marital infidelity, misuse of marital funds, or any means allowed by your state. 

Example of evidence in an at-fault divorce case:

Let’s talk about the divorce of Lucy and Liam. Their marriage has been rocky, largely due to Liam’s chronic infidelity. Lucy decides to file for an at-fault divorce, citing adultery as the reason. 

Lucy collects texts and emails between Liam and several other women. She also collects credit card statements showing lavish expenses on gifts she didn’t buy or receive and hotel stays in her absence. 

This body of evidence could prove Liam’s infidelity, strengthening Lucy’s at-fault divorce claim. Ultimately, this evidence could influence alimony and asset division in her favor.

What is discovery in divorce?

If your divorce proceedings require evidence, you’ll need to go through discovery. Discovery is a legal fact-finding process in litigation. During discovery, your lawyer will turn over the evidence they’ve collected to your spouse’s lawyer, and vice versa. 

The discovery process can seem daunting. Here’s a step-by-step guide to help you get more comfortable. 

Step 1: Scope of Discovery
Discovery is a fact-finding mission. Think of it as an expedition where both parties are searching for divorce evidence to support their claims. Your lawyer will share the evidence they’ve gathered with your spouse’s attorney, and vice versa. However, confidential information or conversations between you and your lawyer will remain undisclosed.

Step 2: Identify Discoverable Evidence
Not all evidence is discoverable. Financial information, phone records, texts, property titles, purchase receipts, and even social media posts often qualify as discoverable. In some cases, medical history, sexual behavior, and parenting skills could also be discoverable.

Step 3: Depositions
Discovery typically takes place during the pre-trial phase, often during depositions. These are oral conversations taken under oath which can lead to requests for additional evidence. Prepare with your lawyer for any potential questions and know what information you’re willing to divulge while understanding that you’re under oath and must tell the truth.

Step 4: Gather Your Evidence
Begin gathering your evidence for your legal team. Your evidence might include bank statements, emails, and texts. The goal here is to build a strong case, so it’s better to give your legal team anything you think might be relevant and let them sort through it.

Step 5: Review Your Evidence
Before your lawyer hands over the evidence to your spouse’s attorney, take time to review it. Make sure it supports your claims. You and your lawyer should also prepare for how your spouse might use your evidence against you. You also need to review the evidence your spouse’s lawyer provided to yours.

Step 6: Cooperate in the Process
The discovery process is designed to level the playing field and ensure transparency. While it may seem intimidating, it’s a crucial process that gets you one step closer to your goal of a fair divorce settlement.

Note: Only certain evidence is “discoverable.” As mentioned above, confidential conversations between you and your legal counsel are not discoverable. But financial information, phone and text records, property and title information, receipts from purchases, and possibly even social media account details could be discoverable. Medical history, sexual behavior, and parenting skills could also be discoverable in certain contexts.

Going to trial

Once the deposition and discovery processes are complete, your divorce goes to trial only if settlement negotiations have been unsuccessful. Settlement negotiations can occur throughout the entire divorce process, from the moment you file up through trial. As you negotiate and chip away at contested issues in your divorce, there’s less and less for the court to decide for you, which is the ultimate goal.

Sometimes, however, a trial is necessary to resolve lingering matters. In a divorce trial, you present the evidence you’ve collected to make your case for why you should receive the assets you’re requesting. The judge makes the ultimate decision about how to divide your assets and liabilities. Most states have a presumption of equitable distribution, which means you’ll need to present evidence to the judge to persuade them why they should give you preferential treatment and distribute your assets in an unequal manner.

Once the judge makes their decision, they will present a final divorce decree or judgment. This describes how your assets and liabilities are to be distributed, discusses any matters relating to your minor children, and finalizes your divorce, formally and legally ending your marriage.

Common divorce issues that may require evidence

Most divorces do not require much evidence. However, certain situations may require it. The most common include the following:

• Visitation: If you have evidence that your spouse has mental health issues or has abused you or your children—or other evidence suggesting it’s in the best interest of your children to live with you—you’ll want to present it to the court. This could include medical records showing a current mental health diagnosis or medical records showing past injuries to your children.
• Child support: Financial statements showing your spouse makes enough money to cover their share of your children’s needs is great evidence, along with your child’s regular expenses. Healthcare costs and lifestyle expenses can also support your claim.
• Spousal support (alimony): Financial evidence showing your spouse makes enough money to provide you with alimony will help show a judge your spouse can afford to provide you support, at least temporarily. For longer-term alimony, lifestyle expenses will be crucial.
• Property division: If you can show you paid an unequal portion of the mortgage for the home or gifted a vehicle to the marriage, you’ll be giving the judge good evidence that you deserve an unequal distribution of assets. To prove this, you’d need to show mortgage payment records which clearly indicate the money came solely from you. For a vehicle, you’d need to show a title transfer indicating the vehicle was transferred jointly after you were married.
• Parenting time: You can use similar evidence, like work records showing your spouse travels frequently, to suggest you deserve an unequal amount of shared parenting time. Photos and videos of you attending your children’s events without your spouse can also be good evidence.

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How to collect evidence against your spouse

Collecting evidence against your spouse occurs mainly during the discovery process, but you can help by providing insight into your spouse’s details, such as their travel schedule or prior instances of abuse. Some evidence, however, is inadmissible.

Admissible vs. inadmissible evidence

Financial evidence is often key to a divorce trial, but not all of it is admissible. If your spouse has been charged with a financial crime, there would be financial information on a police report. But unless the officer testifies and verifies the details of the report, that evidence is inadmissible.

Similarly, evidence obtained illegally is inadmissible. If you log into your spouse’s email or social media account without authorization, any evidence you collect is inadmissible. 

Admissible evidence vs. hearsay

Admissible evidence is information obtained legally that is relevant to the legal proceedings. Often including financial documents, photos and videos, eyewitness testimony, and similar documents, admissible evidence must be relevant to your divorce. For example, your spouse’s bank statements from high school would be admissible but irrelevant; a court would not consider them. 

Hearsay is inadmissible in court. It is information that cannot be substantiated by a first person. If you try to testify that your spouse struck your minor child but you didn’t see it happen, you cannot testify about the actual incident because you weren’t there, making it hearsay. 

Other types of evidence

You may also be able to present character evidence. This type of evidence is helpful when trying to prove your spouse is not fit for full custody or should have limited visitation rights. When presenting character evidence, you most likely will need to have someone testify about their first-hand experience with your spouse and how it shows their character is unworthy of full custody. 

Another type of evidence is “privilege evidence.” If you hold privilege, you can prevent someone else from disclosing information. In divorce proceedings, spousal immunity often arises and is a type of privilege. Spousal immunity means that, even during divorce, you cannot testify against your spouse, and they can’t testify against you unless it is specifically waived.

Types of evidence for fault and no-fault divorces

7 mistakes to avoid when gathering divorce evidence

1.  Collecting inadmissible evidence
2.  Violating privacy laws
3.  Overlooking financial documents
4.  Ignoring digital footprints
5.  Failing to document parenting time
6.  Misrepresenting information
7.  Not consulting a legal professional

FAQ about divorce evidence

What constitutes effective divorce evidence?

The most compelling divorce evidence is relevant, legally obtained, and clearly supports your case. This can range from financial documents to property records to texts. The key is to gather evidence that directly relates to the issue at hand. 

Are there privacy or ethical concerns when presenting divorce evidence in court?

Yes, courts respect privacy rights and ethical boundaries. Evidence obtained through dubious means, like hacking into a spouse’s email or recording conversations without consent, is not only inadmissible but can also lead to legal repercussions. While gathering evidence is crucial, ensure you’re on the right side of the law. 

Getting help with your family law case

Divorce proceedings can be complex, even in the best of circumstances. If your divorce looks like it might be headed for trial, evidence will play an important role. Get help today from Hello Divorce or a divorce attorney in your area.