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DivorceTo Win Your New York Divorce You Have To Sustain Your Burden of Proof

October 23, 2013

Facts on the blackboardIn a contested divorce case, there are a lot of moving parts.   There are procedural rules that guide how you get to court and how the case progresses though the court system.   There are the substantive laws that define the parties’ rights to equitable distribution, custody, maintenance and child support.

Then there are the rules of evidence. The evidentiary rules determine what facts and testimony will be considered by the court and what weight they will be given.  The rules of evidence also define who bears the burden of proof on a particular issue.

You could have a valid legal argument, well supported by the law, but if you have the burden of proof and you fail to satisfy it, you lose.

Two recent cases illustrate the point that a failure to meet your burden of proof is fatal.   In a matrimonial action,all property, unless clearly separate, is presumed marital property and the burden rests with the spouse alleging that the property is separate to rebut that presumption.    The best way to rebut the presumption is to trace the source of funds claimed to be separate property.

In one recent New York divorce case:

the defendant offered any evidence establishing the amounts he contributed to his deferred compensation account before or during the marriage. Thus, he failed to meet his burden of establishing that any of the funds in that account are separate property, and we therefore conclude that the court properly presumed that the entire account constitutes marital property subject to equitable distribution.

In another New York case:

The defendant failed to meet his burden of demonstrating that certain of the funds used to calculate theQDRO amount were pre-marital. Therefore, the court properly accepted the plaintiff’s calculations in connection with the QDRO.

Bottom line –  in plotting strategy for your divorce,  you not only to have the facts that support your legal theory, you need to have a strategy to prove your case with competent evidence.     If you cannot  sustain your burden of proof, you will lose.


The information contained in this website has been provided for general informational purposes only and DOES NOT constitute legal advice; there is no warranty on this information and it does not in any way constitute an attorney-client relationship. Prior results do not guarantee a similar outcome. All individuals are encouraged to seek independent counsel for advice regarding their specific situation and facts. 


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