The Burden Of Proof In Divorce Cases: How To Win Or Lose Divorce Issues

BY: MARK GRUBER, J.D., LLM

The Burden of Proof is the evidence one party must present to be successful in proving a case in a court of law. Different types of case have different burdens of proof. Some burdens are harder than others to meet. Below is a list of the different burdens:

a. PREPONDERANCE OF THE EVIDENCE: This is the standard of proof in civil cases. To prove a case by a preponderance of the evidence, the evidence as a whole must show that the fact sought to be proved is more probable than not.

b. CLEAR AND CONVINCING: In order to meet the clear and convincing burden, the evidence presented must show with reasonable certainty the truth of the ultimate fact in controversy.

c. PRIMA FACIE: To make out a prima facie case, evidence that is good and sufficient on its face must be presented. The evidence will be presumed true unless disproved by some evidence to the contrary.

d. PRESUMPTION: An inference in favor of a particular fact.

i. Rebuttable Presumption. In the law of evidence, a presumption
which may be rebutted by evidence.

ii. Effect of Presumption. - A presumption discharges the
burden of producing evidence as to a fact (the presumed fact)
when another fact (the basic fact) has been established.

iii. The Quantum of Evidence Necessary to Rebut A Presumption-
The contradicting evidence must be strong enough so that after its
admission, reasonable men would differ as to whether the
presumed fact could be found.

BURDEN OF PROOFS IN DIVORCE ISSUES - A TO Z

1. Adultery. The party alleging adultery has the burden of proving their case. Proof of adultery may be established by circumstantial evidence. Opportunity and inclination to comment adultery will satisfy that burden.

2. Alimony Modification. The party seeking modification of an alimony award has the burden of demonstrating a change of circumstances warranting relief from support or maintenance obligations.

3. Annulment. Plaintiff has the burden to produce evidence that is clear and convincing.

4. Ante-Nuptial Agreement. The party seeking to enforce an Ante-Nuptial Agreement must bear the burden of proving that there was full financial disclosure to the other party and then the Court will place the burden on the person who can most easily fulfil it. The burden of proof to set aside a pre-marital agreement shall be upon the party alleging the agreement to be unenforceable.

5. Cohabitation. There is a rebuttal presumption of changed circumstances arising upon prima facie showing of cohabitation. Once cohabitation is shown, the burden of proof, shifts to dependent spouse to show there is no actual economic benefit since because of the cohabitation.

6. Constructive Desertion. The elements of a cause of action for divorce based upon desertion must be established by clear and satisfactory proof, and in cases where desertion is charged to be constituted by denial of matrimonial intercourse, clear and convincing evidence must be presented.

7. Custody Modification. The party seeking modification of an initial custody determination must show by a preponderance of evidence a change of circumstances warranting modification, even though it could reasonably be concluded that a child would benefit from joint custody

8. Exclusive Control of Evidence. A party who has almost exclusive control of evidence will be required to carry the burden on that issue

9. Fraud. Fraud is never presumed but must be clearly and convincingly proved through the use of direct or circumstantial evidence by the party who asserts it.

10. Gifts Exempt from Equitable Distribution. The burden of proof is upon the party attempting to establish that a gift is not subject to equitable distribution.

11. Marriage. The burden of proving the marriage is upon the plaintiff, and must include proof that the plaintiff was legally in a position to enter into a valid marriage.

12. Marriage Presumption. The last of two or more marriages is presumptively valid.

14. No Fault Divorce. The plaintiff must testify that eighteen (18) months or more of separation exist and that there is no reasonable prospect for reconciliation, the burden then shifts to the defendant to overcome the presumption.

15. Parenting Time (Visitation). The parent seeking parenting time has the burden of proving the right to parenting time.

16. Paternity: There is a presumption of paternity if a child is born during a marriage.

17. Reformation of Property Settlement Agreement. Clear and convincing proof is required to justify reformation of a marital contract.

18. Rehabilitative Alimony. Competent evidence must show before the court can enter a rehabilitative alimony award; otherwise, such an award would be complete conjecture.

19. Removal of Children from Jurisdiction. The burden is upon the parent seeking to remove a child from a state.

21. Risk Assessment. The person seeking the risk assessment has the burden of proof by a preponderance of evidence.

22. Service of Pleadings. There is a presumption that the facts in a sheriff's return of service are true. The opponent must establish by clear and convincing evidence that the facts are not as stated in the sheriff's return of service.

23. Stock Options. The owner and participant in an employer provided stock option program (ISOP), has the burden of proving that they are not subject to equitable distribution.

24. Termination of Parental Rights. The burden of proof in a proceeding to terminate parental rights is by clear and convincing evidence.

25. Visitation Out-of-State. The party opposing the proposed out of the State of New Jersey visitation has the burden of showing that the visitation is not in the best interest of the children.

27. Visitation Termination. Evidence that a certain aspect of visitation poses a threat to a child's welfare must be shown by a preponderance of the evidence.

Mark Gruber, Esq. is a name partner in the law firm of Gruber, Colabella, Liuzza, & Williams, with offices in Hopatcong, Hamburg and Newton, NJ.   Certified by the Supreme Court of New Jersey as a family law attorney and the AAML as a divorce mediator and arbitrator, he has practiced family law for over 28 years in New Jersey. View his Divorce Magazine profile.