8 Simple Rules: Evidence in Family Law

In New Jersey, just as in all our courts, we have specific rules on what evidence can be introduced in cases. Oftentimes, in Family Law cases, these rules get overlooked, both by judges and attorneys. The rules are made in part to shield jurors from receiving evidence that does not permit them to fairly judge a case, but there are no juries in family law cases, and thus the rules of evidence frequently are relaxed or ignored as the theory is a judge can (and in many cases, will have to) view evidence without picking up any similar bias. However, the rules of evidence do apply in family law cases, and having an attorney who knows about them and utilizes them can allow for a better presentation and better results. Here are 8 simple rules that can have major impacts on family law cases:

1. Preliminary Hearings

Pursuant to N.J.R.E. 104, if there is a significant issue that needs to be resolved before your trial/hearing takes place, you can ask for a Rule 104 hearing to determine that issue first. This allows your attorney to better prepare for your case and strategize.

2. Rule of Completeness

N.J.R.E. 106 requires your adversary, upon request, to introduce a complete record instead of only part of one, provided it “in fairness ought to be considered at the same time.” This is helpful when an adversary only seeks to admit part of a text chain, voice recording or the like without including the full context.

3. Judicial Notice

The 200s of the New Jersey Rules of Evidence allow the court to take judicial notice of virtually any law (including laws outside of New Jersey), and of facts “of generalized knowledge as are so universally known that they cannot reasonably be the subject of dispute.” This can provide for a more efficient trial and presentation, and requesting the court take judicial notice of a contested issue could demonstrate the adverse attorney is being unreasonable.

4. Character Evidence

N.J.R.E. 404-405 prevents the use of a person’s character trait to show, on a particular occasion, the person acted in accordance with that trait in most circumstances. You can only prove character by reputation, opinion or conviction unless the character trait is an “essential element” of a charge, claim or defense, which rarely occurs in family law cases.

5. Settlement Discussions

N.J.R.E. 408 is arguably the most inappropriately utilized rule of the Family Bar. 408 prohibits settlement discussions only to prove liability. Meaning, you can’t offer that someone offered to pay $50,000 a year in alimony to demonstrate they have an alimony obligation or an ability to pay that alimony obligation. You can, however, offer it to demonstrate one’s good or bad faith (i.e., the proposal was too high/too low), and for a whole host of other reasons. Also, there is no rule preventing you from presenting your own settlement discussions. More often than not, those settlement discussions are admissible, but attorneys frequently believe they are inadmissible.

6. Self-Incrimination and the Election of Same

Pursuant to N.J.R.E. 503 (and both the US and our State Constitutions), a client has an absolute right not to testify against him or herself and incriminate him or herself (i.e,. testify in a manner that would mean criminal charges could be brought against him or her). While the “right to remain silent” cannot be used against you in a criminal case, it can be used against you in a civil case, and if your spouse invokes that right, your attorney should argue that demonstrates your spouse committed a criminal act.

7. Hearsay

Attorneys frequently try to admit hearsay statements—statements made out of court—but they are rarely appropriately admitted. For example, the statements of your children are almost never admissible. On the other hand, the statements made by your spouse are admissible, as there is a specific exception to our hearsay rules that allow an admission by an opponent to be presented as evidence.

8. Summaries

N.J.R.E. 1006 allows summaries, charts and the like to be admitted provided you also provide the underlying documents that support the summary/chart. This can be incredibly helpful to a judge, who may well accept your summary rather than combing through hundreds or thousands of pages that provide the basis for that summary!

If you have a family law issue, our experienced legal team is ready to utilize these and other rules to help you achieve the best outcome for you and your family. Contact our team today.