September 18, 2024

By: Robert D. Weinberg

“It didn’t happen if there isn’t a document to prove it.”

This proposition is a little bit like “possession is nine tenths of the law.” It sounds good and frequently applies, but it isn’t as absolute as it sounds.

In any divorce and custody case, the testimony of the parties is paramount. Yes, the court may hear from experts in financial cases or a party’s parents or best friend in a custody case who says the party is a wonderful parent. But, in my experience, judges want to hear from the parties to assess their credibility and to get to the central issues in any given case.

In divorce cases, the court is required to consider a list of factors for property distribution and a list of separate but similar factors in alimony cases. These factors generally cover “equitable” considerations—meaning what is fair. After all, the court is charged with pursuing “economic justice” in each case.

These general concepts include:

• Each party’s age, health, and ability to work.
• Contributions to the marriage, both financial and non-financial evidence, such as caring for children.
• Financial circumstances of each party, especially sources of current and future income.
• Support by one party of the other party’s education, career or earning capacity.
• Property brought into the marriage by one party from sources such as inheritances.
• The standard of living developed during the marriage.

Documents such as statements for financial accounts, credit card statements, tax returns, and other financial records will be key; in alimony cases, the budget of the party seeking alimony is also critical.

But it is often the testimony of the parties—the story of the marriage—that will drive a court’s analysis of a fair, equitable financial resolution to a case.

This applies with even more force in custody cases. Again, the court is charged with applying a set of statutory factors to the facts of the matter. Those factors include:

• Which party supports the other parent’s relationship with the child.
• The nature of each parent/child relationship.
• The parental duties of each parent.
• The conflict between the parties.
• The ability of each parent to provide stability and continuity for the child.

The court will want to hear each parent directly address the various custody factors. In my experience, the nature and quality of each parent’s relationship with their child comes through in testimony about the child’s health, schedule, interests, activities, friends, grades in school, and other details like favorite books, video games, meals, or small but unique vignettes, such as a favorite memory.

Yes, certain documents in custody cases can be important, especially documentation of the communication between the parties about the child—both if it shows an ability to co-parent, and when it shows conflict or disagreement. But these documents are no replacement for quality testimony.

Indeed, credible testimony must be consistent with the documents involved in any case, but it involves much more than that; it involves planning, organization, understanding the theory of the case, and ultimately an ability to provide a coherent story to the court that incorporates each factor the court must consider.