Most Massachusetts divorces settle before trial. But the evidence each side could present shapes every negotiation, and strong evidence often makes a fair settlement possible without the cost of a trial. It makes sense to think from day one about what you’d show a judge if the case doesn’t settle, and about what your spouse could show about you.
Divorce trials in the Probate and Family Court are heard by a judge, with no jury. The rules of evidence still apply. Here’s what kinds of evidence come up, how evidence gets admitted, and what to avoid.
Evidence the court will expect to see
Some evidence is required in every divorce. Under Supplemental Rule 410, each spouse must exchange three years of tax returns, recent pay stubs, three years of bank, investment and retirement account statements, and recent loan applications, and each spouse files a sworn financial statement. These documents drive decisions about property division, alimony and child support.
If income is disputed, other records can help, such as an earnings history from the Social Security Administration. Those can take months to arrive, so request them early.
Evidence that may help prove conduct or parenting
- Photos and video. These can show harmful conduct, or the positive side: a parent’s involvement in a child’s life, vacations, school events and routines.
- Texts, emails and messages. Often the most important evidence in a modern divorce, especially in custody disputes.
- Phone and computer data. Call logs, location history, browsing and online applications can show habits and contradict statements made to the court. Forensic recovery of deleted data is possible but expensive, and rarely cost-effective in an ordinary case.
- Social media posts. Still a common source of evidence, though people are more careful than they used to be.
- Bank and credit card statements and credit reports. These can show spending patterns, hidden accounts, or new loans and purchases.
- Location records. E-ZPass, phone location data and similar records can place a person somewhere at a particular time.
- Witnesses. Friends, family, teachers, co-workers and others with firsthand knowledge.
- Private investigators and experts. Investigators, accountants, business valuators and medical or mental health professionals are sometimes essential, but they’re costly and usually reserved for cases where a lot is at stake.
How evidence gets admitted
Having evidence isn’t the same as being able to use it. Before a judge will consider a document, email, photo or video, it generally has to clear three hurdles under the Massachusetts Guide to Evidence.
1. Authenticity: is it what you say it is?
The party offering the evidence must show it’s genuine. That’s called laying a foundation. It can be done through testimony from someone with knowledge, for example a spouse who recognizes the other spouse’s handwriting on a letter. It can also be done through circumstances. A typed, unsigned letter found on the kitchen table might be tied to a spouse by its contents and where it was found. For texts, emails and social media messages, the Supreme Judicial Court has held that showing the account belongs to the other spouse isn’t enough by itself. There needs to be some additional evidence, such as the content of the messages or how they fit into a conversation, that the other spouse actually wrote them.
2. Relevance
Evidence is relevant if it makes a fact that matters to the case more or less likely. That’s a low bar, but evidence about things that don’t matter to the issues the judge must decide won’t help.
3. No rule that keeps it out
- Private conversations between spouses. Under G.L. c. 233, § 20, neither spouse may testify about private conversations with the other. That applies in divorce cases, with narrow exceptions such as proceedings involving abuse of a child. A conversation in front of someone else isn’t private, and that other person can testify about it.
- Hearsay. An out-of-court statement offered to prove that what it says is true is generally not admissible unless an exception applies. One common exception is a statement by the opposing party. If your spouse told your best friend about an affair, your friend may be able to testify about it.
- Other privileges, such as the attorney-client privilege and the privileges protecting conversations with psychotherapists and social workers, can also keep evidence out, though they have exceptions in custody cases.
What not to do
Some evidence-gathering can backfire badly, or break the law.
- Don’t secretly record conversations. Massachusetts’ wiretap statute, G.L. c. 272, § 99, prohibits secretly recording a conversation unless every party has consented. It’s a crime, and it can expose you to a lawsuit for damages.
- Don’t break into your spouse’s accounts or devices. Logging into a spouse’s email, phone or social media without permission, or installing tracking software, can violate privacy and computer laws, and may hurt your credibility with the judge. Talk to your lawyer about getting the information through discovery instead.
- Don’t destroy or delete your own evidence. Once a case is filed or expected, deleting messages or posts can lead to sanctions and an assumption that the deleted material was harmful.
Social media and your own conduct
Assume your spouse’s lawyer will look at everything you post and everything your phone and accounts record. While your case is pending:
- Don’t post anything about your spouse, your spouse’s family or the case
- Don’t post photos with a new partner, or announce a new relationship
- Don’t post photos of drinking, drug use, or anything suggesting anger or instability
- Don’t post photos of your children in places children shouldn’t be
- Remember that location data and bank and card statements show where you’ve been and what you’ve bought
- If you post at all, keep it neutral and infrequent
Getting help
Part of preparing a divorce case is identifying, early, the evidence that will matter and how it can be used. If you’re considering divorce or are already in a case, call 978-273-8337 or contact our office to talk through what evidence you have and what you may need.
About the Author
Richard Alan Gaudet, Esq. is a Massachusetts attorney at the Law Offices of Richard Alan Gaudet, LLC in Middleton, Massachusetts, who advises clients on divorce, property division, custody and support. His practice focuses on professional license defense, business law and litigation, family law, and landlord representation, serving clients across Northern, Eastern, and Central Massachusetts. Reach him at 978-273-8337 or rgaudet@gaudetlawoffice.com. Office: 35 Village Rd., Ste 100, Middleton, MA 01949.
ABOUT THIS ARTICLE
This article was prepared by a Massachusetts attorney and is provided solely for general informational and educational purposes directed to members of the general public. It does not constitute legal advice and does not create an attorney-client relationship. The law applicable to any particular situation depends on the specific facts and circumstances of that matter. Readers are encouraged to seek the advice of a licensed Massachusetts attorney before taking any action.
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