Types of Evidence in California Divorces - What Evidence Can I Include in My CA Divorce?

If you're getting a contested divorce in California, then you're probably aware that a courtroom trial and the presentation of evidence await you at some point in the future. Understanding what types of evidence can be leveraged during a California divorce can help you obtain the best outcome in your family law case.

To schedule a consultation with our team and speak with an experienced attorney, contact us online or via phone at (310) 455-8364.

Can Recordings of Conversations Be Evidence?

California is an all-party consent state for recordings, and has some of the strictest recording laws in the U.S. It is illegal in California to record private conversations, including conversations and phone calls, without the other party's consent. Doing so can result in up to one year of imprisonment and a fine of up to $2,500 if charged as a misdemeanor, or imprisonment of up to three years and a fine of up $2,500 if charged as a felony.

There are, however, a few situations in which recording another individual may be legal, and the recordings can be used as evidence:

  • Recordings of communications made during public gatherings are typically legal. Additionally;
  • Recordings that support evidence of abuse are typically legal.

The last point, in particular, is important to note for survivors/victims of domestic violence that want to leverage recording to support allegations against an abuser during their divorce or domestic violence hearings.

If you are considering recording your spouse to gather evidence for your divorce, you should first discuss doing so with your attorney or another authority, such as a law enforcement professional, to ensure that doing so will not put you at risk of conducting illegal activity.

What About Text Messages?

Text messages are becoming an increasingly common source of evidence in divorces, especially during cases where one party accuses the other of conducting activity such as adultery, and can use text messages to support those allegations.

If you obtain text messages legally, you can use them as evidence. Obtaining a text message legally involves authenticating it, which means you must be able to prove your spouse sent the text messages to you, and they are not fabricated or doctored in any way. You may be able to authenticate text messages if your spouse admits to sending them, or a third-party eyewitness can confirm that your spouse did indeed send the message.

Generally, text messages sent from one spouse's phone to the other's, or that are stored on shared devices, can be used as evidence during divorces. However, depending on the circumstances of your case, you may need to go through certain legal processes to obtain texts from your spouse's personal device.

It is important to note, however, that hacking into another person's devices or using their passwords to collect evidence, are both illegal activities. If you obtain text messages from your spouse to another party by using their passwords or device without their permission, the evidence will probably be inadmissible in court, and it will also reflect poorly on your case.

Gathering Evidence Through Interrogatories

Interrogatories - particularly written interrogatories - are some of the most commonly-used evidence-gathering devices during divorces.

Your attorney can submit a request to the other party for an interrogatory. If the information requested is relevant to the case, the other party must answer those questions truthfully.

Additionally, interrogatories can be used to request information - such as tax returns, receipts, or other documents - that are relevant to certain aspects of the divorce process, such as property division.

Depositions & Subpoenas for Evidence Gathering

In a deposition, an attorney asks a party questions, while another individual - such as a court reporter - records the individual's testimony. Depositions can enable attorneys to effectively examine an individual before the court case actually takes place, helping them gather important information.

In some cases, individuals will refuse to supply the court or other party with necessary or important information. In such cases, a subpoena may be used to compel them to either report to court, or supply another party with certain documents. For example, a Civil Subpoena for Personal Appearance at a Trial or Hearing can command a party to attend a certain court date. Alternatively, a Subpoena for Personal Appearance and Production of Documents and Things can not only command a party to appear but also direct them to provide the court and other party with certain types of evidence relevant to the case.

Evidence Gathered By Third Parties

Last but certainly not least, many attorneys will leverage third parties to gather evidence during divorce cases. For example, if you believe your spouse is hiding important financial information from you during the divorce process, your attorney may want to utilize a forensic accountant, who can attempt to track down hidden assets on your behalf.

Generally, evidence uncovered by third parties will be admissible in court, since said third parties are typically familiar with the legality of gathering evidence and will do so with the express intent of ensuring it's usable for your case.

At TRABOLSI | LEVY | GABBARD LLP, our team will work with you to ensure that you find the best path forward during your divorce. To schedule a consultation with our team, contact us online or via phone at (310) 455-8364.

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