At a divorce trial, both spouses have the opportunity to testify, present evidence, and call witnesses to try to convince the judge to rule in their favor. Sometimes, in an attempt to put the other spouse in a bad light, a spouse’s attorney will attempt to raise an issue that's either irrelevant or otherwise inappropriate to be discussed at trial. This article will explain how you can prevent your spouse from attempting to introduce improper evidence or testimony at trial.
Admissibility of Evidence at a Divorce Trial
A wide range of issues may be relevant to a divorce trial. Spouses can testify and present facts regarding their finances, assets, and debts, which are relevant to dividing property in a divorce. Witnesses may also testify about each spouse’s behavior during the marriage, including domestic violence, substance abuse, affairs, and criminal arrests, all of which may be relevant to custody decisions, and—in some states—alimony, property division, and the grounds for divorce.
Still, there are limits to what evidence may come in. For example, a court likely won’t allow one spouse to smear the other with testimony about the criminal history of a family member, who has nothing to do with the case. Similarly, a judge may refuse to allow testimony about a spouse’s behavior from years prior to the marriage, even if it's concerning.
There are other categories of testimony and evidence that may be inadmissible at trial, depending on your jurisdiction. For example, in Georgia, the court may prohibit a spouse from trying to introduce evidence of a spouse’s behavior after the parties separated. Similarly, hearsay (testifying about what an out-of-court person said) is inadmissible at trial except under very specific circumstances.
By the time your divorce reaches trial, you and your attorney should have a pretty good idea what evidence your spouse will try to introduce against you. If you anticipate that your spouse will attempt to introduce inadmissible testimony or evidence, you can ask the judge to make a pretrial ruling prohibiting your spouse from raising that particular issue at trial.
Filing a Motion in Limine
The proper way to keep evidence out of your divorce trial is to file a motion in limine (which in Latin means a motion “at the start,”) before the trial begins. If your divorce case proceeds to trial, you should be represented by an attorney, who will make the motion on your behalf. Your attorney will either file a written motion in limine with the court clerk or make the motion verbally, just before opening statements.
Whether it’s made orally or in written form, the motion in limine will contain the same information: the issue you expect your spouse will try to raise at trial, the reason the court shouldn’t allow that issue into evidence, and the statute or procedural rule that supports your position. For example, your attorney may tell the judge that your spouse will attempt to introduce evidence of your behavior as a juvenile, that the evidence is irrelevant to trial, and then cite the appropriate law in your state that bars the testimony.
The Court’s Ruling on Your Motion in Limine
The court will allow both attorneys to make their arguments for why the judge should either allow or deny the issue in question into evidence. The judge may ask for details about the proposed evidence and cases or laws supporting each side’s position. The court will then make a ruling.
In some cases, the decision to prohibit a spouse from introducing certain evidence will be easy and clear. For example, information regarding a minor criminal incident from years prior to the marriage isn't likely to be relevant to a divorce. In closer cases, the court may weigh the value of the evidence against the potential bias or harm it could have on a judge or jury hearing the case. This is called “weighing the probative value against the prejudicial effect.” If certain evidence is only somewhat relevant, but it would be more prejudicial to have the evidence admitted than it’s ability to help the judge make a decision, the court will rule that evidence inadmissible. If the court rules that the evidence is inadmissible, the judge will state that the spouse trying to submit that evidence won’t be allowed to do so at trial.
If you have additional questions about filing a motion in limine at your divorce trial, you should contact a local family law attorney for help.