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RULES OF EVIDENCE AND YOUR DIVORCE IN NEW YORK
May 27, 2017

RULES OF EVIDENCE AND YOUR DIVORCE IN NEW YORK

 

Often times a custody or divorce case in New York will go to a trial, a fact-finding or a hearing.

This means that your case will be heard by the Judge on the facts, that testimony will be taken from the parties and documents and videos and electronic data may be admitted into evidence for consideration by the court.

As for fault, grounds for divorce are rarely at issue in a New York Divorce since the advent of the new change in the law allowing for parties to proceed on a no-fault ground of irretrievable breakdown of a marriage. That said, the traditional grounds for divorce may still be raised and if so you are allowed to hear your case, as to fault, by a jury.

In the interests of judicial economy however your divorce Judge will emphasize the importance of settling grounds for divorce early on because it will cost a fortune to try fault and nothing is gained except to fuel the flames of an already inflammatory situation. So, unless the fault of one spouse is flagrant and egregious misconduct, it is best to plead grounds under the no fault statute.

When I say that nothing can be gained, I mean that unless the fault is unconscionable it rarely affects the result of your case.  That is, the court will not first require either party to plead a fault divorce in order that it might fairly distribute property under equitable distribution, or order support, or order a custodial schedule.

There are times when fault becomes relevant in a divorce trial, however.  For instance, in a custody case the court must under the law consider domestic violence allegations in its determination of custody and it is also allowable to argue domestic violence as it pertains to spousal support.

Most cases are settled before they go to an evidentiary hearing. But your attorney should always be trial ready because you never know when a court might require you to take the stand and give testimony.  But more often than not you will be given adequate time to prepare

A hearing usually pertains to temporary orders, such as modification petitions and contempt petitions or Pendente Lite motions for custody. But a trial usually refers to the taking of testimony so the Court can have a full hearing on all of the issues of the marriage or the custody case so that it can make an informed final decision.

 

Every hearing or trial usually will start with an opening statement by the attorneys for the spouses. This opening statement is not evidence but is rather a road map to explain to the Judge what the attorney proposes to prove through evidence.

Once the trial start, inn New York we have rules of evidence that require lawyers to follow certain procedures before asking a Judge to consider your documents or other pieces of evidence.

This might lead one to ask what types of documents or items can be introduced into evidence.

In general, all evidence is capable of being offered for consideration so long as it is relevant to prove your case and so long as opposition counsel does not pose an objection. Of course, there is also the issue of reliability of the evidence and as to that issue the law provides guidelines and rules of evidence that lawyers must follow before a document can be admitted into evidence.  For instance, hearsay is inadmissible such that a person cannot take the stand and testify to what he or she heard another person said they saw because that testimony is not based upon firsthand knowledge. So, since that third person is not in the court room to be cross examined, that person’s testimony cannot come into evidence as it is inherently unreliable.

There are exceptions to the hearsay rule however and that would include out of court statements made in a document by the party litigant.  This type of evidence is admitted because you can call that party to the stand and ask them about that paper and the contents of the statement contained therein. Also, a dying declaration or a spontaneous utterance or a declaration against penal interests are deemed reliable enough to be admitted into evidence even if it is hearsay.

Business records are another exception to the hearsay rule but there are certain requirements of reliability that must be shown before they can be admitted, and they must be certified by the record keeper who says, among other things, that the record was kept in the ordinary course of business, it was true when recorded, recorded simultaneously to the incident and it was the business of that company to keep said records.

People often needlessly draw a distinction between documentary evidence and testimony.  In reality both testimony and documentary evidence, if believed, can form a basis for a court decision, and in reality, there is no real difference as the court must consider both forms of evidence in the rendering of its divorce judgment or custody determination.

So, what happens if you take the stand and forget how you are to answer a question because you are nervous?  Them the attorney may ask you to refresh your recollection and is allowed to let you take a look at a document that might help you to remember.  Of course, there are complex evidentiary rules that must be followed to perfect his method of testimony.

Each party is allowed to present their case through direct examination and each party is allowed to conduct cross examination of an opposing party’s testimony. And each party’s attorney may object to the form of a question or object on other legal grounds.

It is important for a trial attorney to know how to try a case because if they fail to object to evidence as it is presented in a court of law and the court rules inaccurately based upon said evidence that should have been objected to, then you cannot appeal this as error to a higher court.

At the end of the trial when all the parties rest the attorneys are allowed to make their closing arguments.  However, closing arguments are not evidence and should rather be persuasive in nature and designed to be based upon the evidence.

For the above reasons, if you are headed for a trial, it makes sense to hire an attorney that has trial experience. In interviewing a lawyer for your divorce or custody case be sure to ask the attorney how much trial experience they have. It can make a world of difference.

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