Hearsay exceptions in family law cases: Business Records of the Marital Household

If you were to walk into my house and go into the closet that adjoins the master-bedroom you would find paperwork like bank statements, medical bills, daycare statements, etc. I’m sure that many of you reading this blog post would be able to say the same thing. These are the sort of documents that we collect in our day to day lives, put them aside and never really think about them unless there is a problem and we need to double check whether a payment was made or something like that. Otherwise, these pieces of paper are out of sight and out of mind.

On the other hand, if you are going through a divorce this paperwork may become incredibly important when it comes to collecting evidence. The part of divorce litigation that can be incredibly hard for many participants to stomach is that at the end of the day the evidence you utilize in a contested hearing or trial are often the day to day documentation that we don’t think twice about. Documents such as those I mentioned in the opening paragraph to this blog post could prove to be incredibly useful for you or your spouse when attempting to prove a point to a judge.

The difficulty that family law attorneys have, however, is finding a way to have this sort of information presented in the context of a hearing and actually admitted into the record for a judge to consider. For those of you who aren’t attorneys, an entire semester of law school is comprised of a class called, “Evidence” where law students are taught the “Rules of Evidence”- how to present evidence in trials and just as important how the rules will allow you as an attorney to have evidence admitted into the record.

Hearsay- what is it and why is it important to your family law case?

Hearsay is a pretty common term nowadays. At its core, the rule against hearsay bars any witness from testifying to what he or she heard another person say. Basically our legal system wants to keep you from retelling what another person supposedly said while you are on the witness stand. The issue is that while you had to take an oath promising to tell the truth, a judge or jury cannot be certain of the veracity (truthfulness) of this other person’s statement made outside of the courtroom.

However, as any first or second year law student could tell you, there are a number of exceptions to the rule that bars hearsay statements from being admitted into evidence. One of those exceptions deals with business records and not oral testimony. As it happens, frequently in family law cases an attorney will ask you (the client) for documents that may be relevant to a temporary orders hearing or trial. Bank records showing payments made or income earned, school records for your kids, that sort of thing. The issue that we run into is that because the trustworthiness and authenticity are in question the rule against hearsay would seem to bar them unless we got the documents from the bank or school.

The Texas Rules of Evidence under Rule 806(6) allows for records to be admitted into evidence that a client produces for an attorney as long as the client has specific and personal knowledge of the information contained in the documents. While the term “business records” clearly comes from documents that are utilized in a business capacity, the law of Texas is that personal records count under this hearsay exception as well. “Business” doesn’t even have to mean the records need to come from a business, but rather “any and every kind of regularly organized activity whether conducted for profit or not.” Texas Rules of Evidence, Section 803(6).

What this means for your family law case

This is all good and well, but ultimately you as a father or mother care about how these rules are going to impact your case that concerns your son or daughter. The bottom line as I can tell is that if you keep good records as a part of your adult life then your attorney should be able to offer those records into evidence and have them admitted into the record. A judge will look to a few factors when deciding whether or not a statement or record should be admissible in this context:

  1. Whether you as a the person offering the record or statement has maintained the document as in the regular course of your activities as a spouse or parent
  2. That you are relying upon the accuracy of the document
  3. That you are able to offer testimony that indicates that the documents are trustworthy

If you can check each of these boxes then the odds are favorable that you can get those records admitted into evidence. The benefit to having documentary evidence available is that while your testimony is critically important in a hearing, it is always helpful to have additional evidence to add clarity to what you are discussing.

This also highlights how critical it is to respond quickly and thoroughly to your attorney’s requests for you to produce documents and records that may be helpful as evidence in a trial or hearing. If you have hired a lawyer or are considering whether or not to do so it is advisable to begin collecting and organizing any documents you feel may be relevant to your case now, rather than waiting until the last minute. Your attorney needs time not only to prepare them for introduction during a hearing or trial but to formulate a strategy to do so bearing in mind the rule against hearsay.


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Other Articles you may be interested in:

  1. Tips on giving in-court testimony in your divorce or child custody case, Part Three
  2. Tips on giving in-court testimony in your divorce or child custody case
  3. Tips on giving in-court testimony in your divorce or child custody case, Part Two
  4. Getting Ready for a Hearing On Temporary Custody Orders
  5. Child Custody Geographic Restrictions in Texas
  6. Geographic Restrictions in Child Visitation Orders in Texas
  7. The Dirty Trick of Moving Out of State with the Kids
  8. Can a Parent remove My Child from the state of Texas or from the County or Country where I am living?
  9. Children’s Passports and International Travel after Texas Divorce
  10. Child Custody Basics for Texas Parents Revisited
  11. Child Custody Basics in Texas
  12. Does the type of business matter in a divorce?

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