Archive for January, 2011

Burden of Proof

Monday, January 31st, 2011

In court, a party making an assertion must prove it true, and in a divorce, a spouse making a claim in a fault action must prove such fault. In law, the burden of proof is defined in three ways: in civil actions, preponderance of evidence and clear and convincing, for civil actions, and beyond a reasonable doubt for criminal actions.

Preponderance of evidence, the lower of the two standards, means the litigant’s claims are “more likely true than not true.” This standard is the lowest and easiest burden to meet, and it is the one required in most civil litigation, including divorce, separation and domestic violence.

Clear and convincing, the higher of the two standards in civil action, is the standard required by a litigant “to rebut a legal presumption,” for example, to overturn a prenuptial agreement. This standard requires what is termed “a firm belief” as to the truth of the claim in the mind of a judge or jury.

Beyond a reasonable doubt is the highest and most demanding standard and it is reserved for criminal actions. This is the standard a court uses in depriving someone of his liberty and, in extreme cases, his or her life. This standard means that the jury is “satisfied to a moral certainty” of the proof of the allegations against the accused.

Lying Under Oath

Friday, January 21st, 2011

Back in the bad old days, when fault divorce was the only way to end a marriage, lying under oath – perjury – happened every day. One Pennsylvania judge who granted many divorces said that divorce court was a meeting of what he called “the liars’ club.” Spouses, coached by skillful lawyers, routinely concocted stories, and as they say, “bore false witness” against their estranged husbands and wives. For example, many couples, faced with the burdens of proof, engaged in collusive divorce by setting up their own fictitious adultery so the other spouse had grounds for the action.

It would be great to say that no fault ended divorce perjury, but it probably has not. Now couples must resist the temptation to lie about the goods they are dividing.

Perjury is lying under oath. Put simply, if a person believes he or she is telling the truth when testifying, he is neither a liar nor a perjurer. Lying knowingly and intentionally and doing it under oath is what makes willful mistakes perjury.

Civil perjury is rarely prosecuted. However, divorce judges, who have heard and seen all manner of flying carpets, do not like it when people lie in their courtrooms. Judges often like one party more than the other, and it is cinch that it not the party who perjures himself or herself.

Kidnapping Is a Crime

Tuesday, January 4th, 2011

Thousands of children disappear each year and many are abducted by one parent after a bitter divorce, and many custodial parents fear that their former partner may kidnap a child.

Parental kidnapping is a crime. The wrongful removal or retention of a minor child is a breach of the other parent’s custody rights under the laws where the child is a habitual resident.

The victims of parental kidnapping have tools to reclaim these abducted children. The Parental Kidnapping Prevention Act (PKPA) requires states to cooperate with each other in returning kidnapped children when the child custody judgments of sister states are compatible with the act.

The Uniform Child Custody and Enforcement Act (UCCJEA), a uniform law regarding custody and visitation, is designed to discourage and prevent parental kidnapping, particularly when one parent moves during a divorce.

When the kidnapping crosses international borders, the rightful parent may turn to the Hague Convention on the Civil Aspects of International Abduction, which established procedures for dealing with international child abduction. This convention is now in force between the United States are some 50 countries.

A good place to start is the National Center for Missing and Exploited Children (NCMEC), which works through the Central Authority of the Hague Convention. NCEMC provides help to individuals, parents, and agencies in located and assisting in the return of missing children. The telephone numbers are 800-843-5678 or 800-826-7653.