Fairly often, I deal with people going through a divorce who tell me “…and I have proof that he/she is cheating on me, I have a [text/voice-mail/email/telephone recording]!”   Lets face it, most people reading this probably are not lawyers and probably don’t know that the rules of evidence exist, much less what they are.  So I’m going to give a short primer on “proof” and what it means to you.

First, proof is not of much use unless you are going to have a trial.  Sure, you can threaten that you have it, and try to use it as leverage in bargaining for a settlement, but no judge will ever consider it for anything if you are not going to have a trial.  So unless you’re in trial mode (for some god-awful reason) the Judge is NOT going to consider your proof.

Second, proof is completely worthless if it is not in an admissible form.  This means the proof cannot be hear-say (hearsay is an out of court statement offered to prove the truth of the matter asserted, try and wrap your brain around that), or it must fall within one of the exceptions to the hear-say rule (there are simply too many to list here, you’ll need to go check a textbook for all the exceptions), it must be properly introduced to the Court (this is called laying a foundation, check the same textbook you looked at for exceptions to the hear-say rule, there’s probably a chapter or two devoted to introduction of evidence), it must then be offered into evidence and will be subject to voire dire by the opposing attorney (yup, check the text book for that too).  Once you jump through all these hurdles, your proof may, or may not be entered into evidence.   But you’re not finished…

Your proof will not mean too much if it is not relevant.  Your proof (whatever it may consist of) can be as iron-clad as the Tommy Lee-Pam Anderson sex tape… but if it is not relevant to your case, it is useless and will not be admitted to evidence.  So what does that mean?  It means that if you have a video of your soon-to-be-ex-husband bopping his secretary on your kitchen table while holding a copy of the New York Times up to the camera (to prove the date), and he is the one suing you for divorce and you agree that you want to be divorced and grounds are not at issue in the proceedings, the video is irrelevant and gets you nothing.

But, you say, “Chuck… that’s absurd!  I’ve got the old man bopping his secretary on MY kitchen table, and you tell me it’s worthless???  How can this be???”  I say to you, CORRECT!  The video would certainly be relevant to proving grounds of adultery, but if grounds are not at issue, the tape is irrelevant, and thus would not likely be admitted into evidence at trial.

Remember, in New York State, a divorce consists of the divorce itself PLUS dealing with the ancillary issues of child custody and visitation, equitable distribution, child support, and spousal maintenance.  The video would certainly show that soon-to-be-ex-hubby has poor taste, and probably that he’s a big jerk.  But it has little to no bearing on any of the ancillary issues (unless he was bopping away with the kids there to see it, or some other unlikely series of events unfolded around the incident).  In New York, you don’t get a bigger piece of the marital pie in equitable distribution because you were cheated on.  You might get a bigger chunk if there was wasteful dissipation or conduct so egregious that it “shocks the conscience” (as the Court of Appeals might say), but the hypothetical scenario here would not meet that criteria (yes, I know that saddens many of you).

Another thing to think about with your “proof” is how do you prove what it actually is?  So you have a picture of the dented bed-frame that your wife smashed with a baseball bat when she was trying to smash your head in, in a drunken rage?  That’s GREAT!  but the best evidence rule says you should have brought in the whole damned bed-frame.  Forget that for a second and lets talk about the picture.  The smashing happened in 1995, and you took the picture last week.  Bad news, you can only go back 5 years in a divorce.  More bad news, your wife is probably going to say “Oh no, that dent was from the time we moved into the new apartment and he dropped it going up the stairs.”   So what do you really have in that picture?  Have you got proof that your wife went nuts and tried to kill you with a baseball bat?  Nope.  But you have some excellent evidence that you have a dented bed-frame.

Lets talk about wire-tapping crimes for a minute!!!  It seems like everyone wants to tape their spouse these days.  Maybe it’s because of the easy access to electronics, maybe it’s because the moon is full, I just don’t know.  In New York, you can tape a telephone conversation so long as one of the parties to the conversation is aware that it is being taped.  I still don’t usually recommend it, for a host of reasons.  These taped conversations always sound contrived; they rarely wind up being the smoking gun that one thinks they are; and a judge NEVER wants to be bothered to listen to them at trial.  Nevertheless, I’m positive some of you will go to the Spy Outlet and put the tape recorder on your phone anyway.  So please realize, that you are going to be committing all kinds of crimes if you leave the tape recorder on the line when you are not on it, or you secretly record a conversation between your spouse and her paramour that you are not a party to.  In the end, the best advice, is don’t do the tape recording thing… it’s usually not worth the time, unless your attorney specifically tells you to do it.

Text messages– a personal favorite of mine.  So you have text messages of your husband saying he is hiding millions of dollars in a Swiss bank account and you’ll never get it.  Those will be tough to get into evidence.  First, how do you put the text message into evidence?  Sure you can get the phone records, but they only keep text messages on the servers for about 48 hours, then they are deleted.  Are you going to give the judge your phone and say “here they are, I’d like to admit my phone into evidence”???  Kiss your phone goodbye.  And besides, the judge is not going to take your phone into evidence and try to retrieve text messages from it, judges have better things to do.  Next, how do you prove who sent the text message?  Your husband is going to say he lent the phone to his buddy who sent the text as a joke.  You weren’t there to see him press the buttons, so how exactly can you prove it was your husband who sent the text?  The answer is, you probably can’t, and your proof won’t come into evidence.

Emails– see text messages.  But emails are even better, now the guilty husband also gets to say that a hacker stole his password and he hasn’t had access to that email address in two months.  Try and disprove that one in a courtroom with a judge who is late for a tee time.

All things being equal, I think that the vast majority of judges don’t really want to have to consider your proof by [voice-mail/text/email/video].  They would rather hear the testimony of the parties and see your bank records that were properly subpoenaed and submitted and prove that there is $705.49 in your checking account.  Documents are tangible, they are neat, they are something judges are familiar with, and they don’t require legal acrobatics to get them into evidence.  Judges, it seems by nature, don’t want to break new ground and be the first in the county to let text messages into evidence at trial.  They seem to dislike the necessity of setting up a TV in the Courtroom, unless it’s going to be an incredibly exciting and relevant show!  So, I advocate for the humble document.  When it comes to proof, a written document, that can be authenticated (ex. a letter signed by your husband, with the date on it, to his bank saying transfer all my assets to that Swiss account) remains the gold standard in evidence.

Tags: divorce, equitable distribution, evidence, Grounds, matrimonial, New York, proof, trial