Evidence, Presumptions, and Privileges

A trial in a divorce case is not dissimilar to a trial in other civil litigation. The California Code of Civil Procedure and the Evidence Code must be followed. Trials may be very complex proceedings that are often lost due to a lack of understanding of procedural rules or the rules of evidence.

Evidence, Presumptions, and Privileges

The property portion of a divorce is essentially the division of a partnership - a business transaction. The law dictates very specific and detailed procedures for this transaction which can take the form of a settlement or a trial. It is a very significant error to believe that the concept of dividing community property 50/50 means that the division will necessarily be simple and straightforward. Parties may disagree on the values of an asset, who is to be awarded the asset and whether the asset is community property or separate property. If the parties do not agree to a settlement, litigation will occur. If litigation occurs, the court will follow the required procedures and the rules of evidence. The rules require the presentation of the facts in a specific format which may consume considerable time and require detailed planning.

The process can be expensive and is not simply a matter of informally telling a story to the small judge. Very often the rules of evidence prevent significant information, evidence or testimony from being presented. If this occurs, the information will not be considered by the court in the rulings.

The law includes many presumptions which can control the results of an issue. These presumptions control who will prevail on specific issues if no evidence is presented. Some presumptions are rebuttable and others are conclusive. Some presumptions take priority over others. There are presumptions which may affect the burden of proof and presumptions which may affect the burden of producing evidence. Presumptions and burdens are very significant to trial preparation and strategy.