Dumpster diving the family court files

When I first started practicing family law an early mentor, William J. Hamilton, III, told me that, “the evidence for a thousand divorces lies in the family court files.”  What he meant is that many an adultery divorce was obtained without the spouse of the other party to the adultery being aware of the infidelity.  His greater point was that other folks’ family court files often have information helpful to one’s cases.

This is largely because many people go through more than one divorce or have children with more than one parent.  There are myriad ways that such old files can provide useful information for current litigation.

One party’s previously filed financial declarations and final orders are obvious items to obtain.  Financial declarations provide sworn testimony to that party’s financial condition at a certain moment of time.  Divorce decrees or final orders of separate maintenance can show what property one party might have owned and whether that party was then capable of self-support.  Such orders might also contain evidence of past fitness concerns regarding custody and visitation.

The affidavits from such cases can also provide useful impeachment information–not only against the opposing party based on his or her previous affidavits but also for that party’s witnesses.  For example if a couple with children are going through a divorce, and one or both parties had previous custody litigation involving other children, that party’s witnesses might have provided affidavits in the prior case attesting to the good qualities of the stepparent in order to support the parent.  With the parties now divorcing, friends and family who once praised the stepparent will now attack him or her.  These previous affidavits can often impeach and limit the impact of the now-adverse testimony.

The parties’ previous litigation material is even more useful.  With any modification case a sharp first step is to obtain a complete copy of the previous family court files.  Partially this is essential to demonstrate what the circumstances were at the time of the previous final order, which is vital to showing or disproving a substantial change of circumstances.  Such information is also needed to insure that one’s own client does not submit sworn statements that contradict previously filed information.  Finally these files often provide useful impeachment information against opposing parties.  In modification cases in which I have the complete previous file(s) and opposing counsel doesn’t, I operate at a tremendous advantage.

In any contested litigation a good first step is to determine what might exist in the family court files that help or hurt each party’s claim.  Such dumpster diving can be an extremely productive, low-cost discovery method.

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