Types Of Evidence

Initially, it is important to understand the different forms of evidence that may be introduced in a contested divorce proceeding.

  • >Written Evidence: This category includes any documentation that is available in paper or electronic format, which a party will typically provide to an attorney before filing for divorce or early on in the process. Written evidence may also enter a divorce case through discovery, including interrogatories and requests for documents.
  • Oral Evidence: Any information that comes through the spoken word constitutes oral evidence, such as the testimony of either party, witnesses, experts, and others who are called to the stand. In addition, statements made in connection with a deposition are also oral evidence, though the transcript itself is on paper.

According to the Texas Rules of Evidence, all written and oral evidence is admissible as long as it is relevant and does not contravene some other federal or state law.

How Evidence Fits into a Contested Divorce Case

Property Division: The initial question in this area is whether assets were acquired during the marriage, in which case it is considered community property and subject to equitable distribution. Separate property owned before getting married, gifts, and inheritances belong to the respective spouse. Community property will be divided in the interests of fairness in a contested divorce. Therefore, evidence regarding ownership of an asset, when it was acquired, and its value is important.

Spousal Support: A judge will consider whether post-divorce spousal support is appropriate, what type of spousal support best suits the situation and the amount to be paid by the payor spouse. As such, information on the following topics may be useful:

  • Income and wages;
  • The lower-earning spouse’s education and employment potential;
  • History regarding one spouse staying out of the workforce to contribute to the household and children;
  • The opportunities a spouse gave up to support the other through educational or employment endeavors.

Issues Related to Minor Children

A judge applies the factors related to the child’s best interests to determine custody and visitation arrangements. Evidence is important as it relates to:

  • The mental and physical fitness of each parent;
  • The child’s current and future needs;
  • Potential for abuse, violence, or other dangers to the child;
  • The stability of the proposed residential arrangement; and,
  • Other factors listed in the Texas statute.

For purposes of determining child support, evidence regarding the parents’ income and assets will be central in applying Texas’ child support guidelines.


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