Burden of Proof

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.

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