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Burden of Proof in Divorce Cases

Posted by J. Benjamin Stevens | May 29, 2007 | 0 Comments

Attorneys should be sure that their clients understand the basics of what “burden of proof” must be proved in their divorce cases.  The more a client knows, the more helpful he/she can be in obtaining the necessary evidence to help the attorney prove the case and obtain the divorce.

Each of the divorce grounds has certain, specified elements that must be proven. For instance, in order to be granted a divorce on adultery, a party must prove by “clear and convincing” evidence that his/her spouse had both “inclination and opportunity” to have intercourse with a person of the opposite sex. However, the law does not require absolute proof of adultery.

It is usually necessary to have some corroborating evidence in addition to the testimony of the suing party. There are numerous ways to prove divorce grounds. For instance, in cases of physical cruelty, treating physicians can testify about medical treatment rendered or witnesses can testify about marks and bruises they have seen. In adultery cases, pictures of the spouse and lover acting romantically or entering an apartment or motel are sometimes sufficient. In habitual drunkenness cases, the Court can consider things such as prescription records, checks at liquor stores, or pictures of empty liquor bottles.

In rare cases, the Judge may not require corroborating evidence if he is thoroughly convinced there is no collusion. Collusion means the parties have conspired to fake the grounds for divorce. Collusion is illegal and leads to perjury and is also unethical and improper.

About the Author

J. Benjamin Stevens

Senior Partner


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