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If you have divorce questions

Trial Evidence

Trial Evidence

There are five general issues that must be addressed in each Georgia divorce: grounds for divorce, equitable distribution, child custody, child support and alimony. Because every divorce matter is unique, it may not be necessary for a court to make a determination on each of these elements in every matter. For example, in a divorce matter where the couple has no children, it will not be necessary for the presiding court to make a determination regarding child custody or child support. However, the court must still determine whether a divorce is warranted, how the couple’s marital property will be divided and whether alimony should be awarded to either party. Regardless of whether all four elements of divorce are in contention, or whether there is only one element that must be determined, at trial each party must present evidence to the presiding court proving by a preponderance of the evidence, that a divorce is warranted based on one of Georgia’s thirteen grounds for divorcee and why the court should rule in his or her favor concerning the issues of child support, child custody, equitable division and alimony.

There are several forms of evidence that a party may present to the court in a divorce matter, and they type of evidence presented often depends on the issues in contention.

Lay witness testimony

Although at temporary hearings only the involved parties and one additional witness for each side may offer oral testimony, during Georgia divorce trials each party may offer several witnesses in support of his or her contentions, so long as the witness’s testimony is relevant to the action. See Uniform Superior Court Rule 24.5(A). Lay witness testimony is the most common way for litigants to present evidence to the court. Witness testimony may be used to relay to the court facts the witness knows about the issues in contention, relevant occurrences the witness has observed or statements the witness has heard one of the parties make. See generally O.C.G.A. § 24-7-701. Although it is not necessary for each party to have a barrage of witnesses to testify regarding every allegation or issue of the divorce, if a witness has specific and firsthand knowledge concerning a spouse’s misconduct, a parent’s parenting ability or occurrences of family violence, that witnesses’ testimony may be particularly valuable in verifying and validating a party’s allegations. Some examples of how lay witness testimony may be utilized at trial include:

  • A teacher testifying concerning a parent’s involvement in the education and extracurricular activities of their child.
  • A neighbor testifying about the instance of family violence she witnessed.
  • A spouse testifying that the marriage between herself and her husband is irretrievably broken and that there is no hope for reconciliation.

Additionally, while not advisable, in certain limited circumstances children may be allowed to testify in matters where child custody is in dispute. Often though, in lieu having a child provide testimony at trial, the court may request to speak with the child in chambers. In the event the court does seek to speak with the child in chambers, the attorney for both parents may be present, but generally will not be permitted to question the child. See Uniform Superior Court Rule 24.5(B).

Expert witness testimony

In addition to testimony provided by lay witnesses such as the parties themselves, neighbors, family, friends and other individuals that have actual knowledge regarding the couple’s marriage and the issues in contention in the divorce, expert witness testimony is another forms of evidence that parties may present to the court during divorce trials. See generally § O.C.G.A. 24-6-66. In order to present the testimony of an expert witness at trial, the party seeking to present the witness must show that expert’s testimony will help the judge or jury understand a certain topic that the average person would find it hard to understand without the aid of an expert. O.C.G.A. §§ 24-7-702 and 24-7-703. Seeing that there are several complex issues that must be resolved incident to divorce, there are various ways expert testimony may be implemented during a divorce trial, for example:

  • A Guardian ad litem providing the court with his or her recommendation concerning the custody arrangement that would best serve the best interest of the child or children involved in the divorce matter.
  • The expert testimony of a property appraiser concerning the value of the marital home and rental property that is to be equitably divided between the spouses.
  • A Business evaluator providing the court with testimony concerning the value and profitableness of a family business in an equitable division matter.
  • Child psychologist testimony concerning the emotional and psychological wellbeing of the child or children involved in the divorce matter.
  • The expert testimony of a Forensic accountant concerning the true nature of the assets and income of a spouse with complex finances to aid the court in child support and alimony determinations.

Documentary evidence

Second to lay witness testimony, documentary evidence is the next most common form of evidence litigants utilize to support their arguments and contentions at trial. Similar to evidence presented in the form of lay witness testimony, documentary evidence must be relevant to the issues in contention in order to be admitted and heard by the court. O.C.G.A. §§ 24-4-401 and 24-4-402. Additionally, before documentary evidence may be admitted into evidence, the party seeking to admit the evidence must lay the proper foundation substantiating the authenticity of the evidence. O.C.G.A. §§ 24-9-901 and 24-9-903. This foundation is generally established through the testimony of a witness with personal knowledge of what the document is, how the document was created or obtained and how it relates to the issues at hand. Some common examples of documentary evidence that may be used at a Georgia divorce trial include:

  • Pay stubs, tax records, bank account and retirement accounts records and Domestic Relations Financial Affidavits completed by both parties to substantiate individual income and assets for the purposes of calculating child support or determine the appropriate amount of alimony.
  • Property records and business records to aid the court in ascertaining the full extent of the couples marital property in order to conduct an appropriate equitable division analysis.
  • School records, Guardian ad litem reports and proposed child custody and parenting time schedules to advise the court concerning the most appropriate child custody arrangement.
  • Proposed child support worksheets and schedules to inform the court concerning which deviations and adjustments to the presumptive child support amount may be appropriate.
  • Emails, letters, and text messages to prove spousal misconduct such as adultery.

Photographic evidence and other forms of physical evidence

In addition to witness testimony and documentary evidence, litigants may also present the court with other forms of physical evidence, such as photographs, video recordings, voice recordings, articles of clothing or articles of property in order to support their contentions at trial. The rules of evidence as they relate to documentary evidence also apply to photographic and physical evidence. Thus, in order to be admitted at trial, any physical evidence presented to the court must be relevant to the issues in contention and authenticated before the court will admit and consider such evidence. O.C.G.A. §§ 24-4-401 and 24-4-402; O.C.G.A. §§ 24-9-901 and 24-9-903. Generally, to properly introduce a photograph or videotape into evidence, a witness must testify that the photograph or videotape accurately represents what is being shown at the time taken, and that the photograph or videotape has not been altered. In a Georgia divorce trial, photographic, audiovisual, and other physical evidence may be used by either party to substitute claims of adultery, physical abuse, chronic substance abuse, the condition of personal or real property, or other contentions that may not otherwise be easily proven without such evidence.

What type of evidence is allowed?

Witnesses/ affidavits

How many witnesses can I have?

At trial, you may have as many witnesses as you need to prove your case (unless the court determines their testimony is inadmissible for a legal reason such as relevance). At a temporary hearing in Georgia, you are generally limited to the party (yourself) and one witness per party at a temporary hearing, unless the court makes an exception.

Can affidavits be used instead of witnesses?

Yes. Under certain conditions, and used properly (including giving the other side a copy at the right time), at temporary hearings, affidavits may be submitted in lieu of live witness testimony. An affidavit is a sworn written statement. 

Expert testimony/reports

Physical and documentary evidence

Evidence in divorce cases can come in many different formats, including photographs, videos, and electronic communications. This evidence, when obtained in a lawful manner, can be extremely persuasive in a divorce case. 

What needs to be proven in a divorce matter? Well, it depends on what is being alleged by the parties.

Equitable division: Evidence needed to prove separate vs. marital and evidence bearing on division – such as adultery and use of marital funds in affair.

Alimony: Evidence needed to prove up need vs. ability to pay as well as alimony factors.

Child support: Evidence of parents’ gross income and evidence needed to prove up any deviations to the presumptive support obligation.

Child custody: Evidence proving best interest of children and which parent would be best suited to be primary custodian. Additionally, how custody arrangement may impact children.