Gathering Evidence for Your Divorce Case

What can be admitted as evidence in court?

Testimony

Testimony normally must be given in court. Evidentiary depositions may be held when the witness is in bad health, is expected to die, or will be out of the country. Otherwise, the witness must appear in court to provide his or her testimony.

Hearsay is not admissible as evidence! You cannot testify to something that someone else told you unless it’s your spouse. While this is technically hearsay, this is an exception to the hearsay rule that allows this to be admissible as evidence. For example, if you and your husband are separating and he told you, “I had an affair,” you can testify to that. But if your sister tells you she saw him with someone else, that is hearsay, and you cannot testify to that. Your sister would have to come to court and tell the judge personally what she saw. Moreover, just because you know about something or have seen something, you must have proof to support it.

Documents

When there is a disagreement about custody, you may need to produce school records as well as medical records showing who is taking the child to the doctor and who is paying the bills. When requesting alimony, you will need to produce bank records showing income and expenditures. I recently represented a client whose ex-wife was receiving alimony. The ex paid for tanning, a manicure, and new clothes, then rented a car and drove to another state to meet up with someone she met on a dating site. We proved that she had profiles on various dating sites and that her bank records showed that she spent the money on these luxury items; therefore, we proved that she did not need the alimony if she could afford to pay for these luxury items.

Pictures

Photos can prove if your spouse has been spending time with someone else, the condition of someone’s home, or any proof of domestic violence or destruction of property. You can’t just submit the photos, however. You must be able to authenticate the photos to indicate that you remember when the photo was taken, where it was taken, and that it is an accurate representation of the events depicted.

Text messages

You can subpoena providers like AT&T, Verizon, Sprint, or T-Mobile to get text records, but those records will only show the phone numbers and times of the text messages, not the content of the messages. If you have text messages that your spouse sent you, then you can submit those as evidence. I recommend that you take screen shots, then email them to your attorney in order to preserve those records.

Financial records

Know exactly what you’re asking for and splitting. Your divorce trial is the final say for the division of assets. If it was acquired during the marriage, it is considered a joint asset. You will want to know what those assets were worth before the marriage and what they are worth now – especially if you have contributed financially.

As part of the Marital Dissolution Agreement, you and your spouse will need to fill out a disclosure sheet listing all your assets. This includes not just bank accounts, but investments, retirement accounts, and pensions. You should know everything about your financials – how much you have, where the money or investments are located, and the tax consequences for making changes. For example, I recently had a relatively young client who agreed to take $10,000 cash now in exchange for allowing his spouse to keep $25,000 in a retirement account that he would have been entitled to decades down the road. It was a cleaner split and did not bring any tax consequences.

As you can see, a lot of work and time goes into gathering evidence, determining whether or not it can be admitted into court, and deciding how the evidence will help and not harm your case. If you’re facing a contested divorce, I recommend you consult with an experienced attorney to go over your evidence. Your future concerning your children and your finances may depend on it.

Lewis Williams is an associate attorney with Flexer Law, a full-service law firm in Nashville, Tennessee. With over a decade of experience, he has represented clients in over 2,000 domestic cases. In his spare time, Lewis enjoys playing basketball and going to his kids’ soccer and baseball games.