Divorce Evidence Rights

By Rob Jennings J.D.

Rear view of two lawyers approaching the judge

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With all states now offering some form of no-fault divorce, the necessity of hiring private investigators to get the dirt on a spouse has diminished. In a contested divorce case, however, evidence can become critical — especially if you're seeking alimony, child custody or, in some states, property division. Claiming marital misconduct in a complaint allows the judge to consider your allegations, but you'll need to produce evidence that proves your claims.

Admissibility of Evidence

Evidence law varies from state to state. Parties often hire private investigators to watch their spouses and take pictures of them in public places. With today's technology, you can often do your own investigating even if you cannot afford a private investigator. People post many of their activities on social media sites such as Facebook, Twitter and Flickr. Social media has become acceptable evidence to prove marital misconduct in a divorce case. Since these pages are often public, there exists no reasonable expectation of privacy. You can use photographs, for example, that a user has publicly posted to his page or status updates from Facebook. Some courts may even force a party to hand over passwords to his social media sites.

Inadmissible Evidence

Evidence that you obtained illegally is not admissible in court. For example, emails that prove your spouse is having an affair may be useless if you hacked into his account in order to obtain them. You may also be barred from using information kept on a computer that belongs to your spouse only and which only your spouse uses. There are certain times when the law says people have a reasonable expectation of privacy and the law protects that privacy, in part, through evidence law.

Custody Evidence

Judges often have a lot of discretion when determining which parent to award primary custody, making it critical to produce persuasive evidence. Courts can look at each parent’s criminal history, child-raising duties performed by each parent, which parent is already more involved in the child’s life, stability of each parent, behavior of the child toward each parent, and how the child is performing in school. To prove that you are the better choice, you can use a home study evaluation, restraining orders, photographs and witness testimony as evidence in your custody case.

Marital Misconduct

Some states allow spouses to present evidence of marital misconduct. Courts often look at this evidence when awarding alimony or dividing property. For example, in North Carolina, a dependent spouse who committed adultery during the marriage cannot receive alimony, while a supporting spouse who committed adultery during the marriage will have to pay alimony. In Missouri, a court can consider marital misconduct when dividing property.