Authenticity and hearsay.
You have your own list of documents or other physical evidence you need, and one from your expert or experts.
The first step: When it comes from the other side, it is good to go.
Your spouse will have to produce at least one Declaration of Disclosure, and you may issue Discovery requiring your spouse to produce information or physical evidence, usually documents. When it comes from your spouse as part of their Declaration of Disclosure, or as a response to Discovery, you are done: the evidence’s authenticity is established and your spouse is estopped from making a hearsay objection.
This is why it is very important to make sure that your spouse’s Declaration of Disclosure is complete and states a position regarding each assets and debts characterization (whether it is community or separate property) and value. If your spouse’s Declaration of Disclosure is lacking, then you can and should ask for a complete response from them, to create a document that you can use at trial.
Your spouse or their attorney might also produce discovery to you voluntarily. If so, it’s important that you have some means of proving that production: e.g., at a trial you still may have to prove that your spouse gave you two-hundred pages of bank documents two years earlier.
The safest route would be to ask them to list the produced items in a dated and signed letter along with a verification—a signed statement under penalty of perjury.
Your documents, documents from third parties, and Declarations of Custodian.
For any item of physical evidence that you or your expert needs that has not been produced by the other side (e.g., documents you subpoena from third parties, or have acquired yourself), in most cases, if these are business records, you can admit the evidence so long as they are accompanied by a “Declaration of Custodian,” a document from the third party institution that verifies that the identified documents are authentic and should be admitted without the live testimony of the person who drafted the documents.
Generally, you can get a Declaration of Custodian for your documents by issuing a discovery demand called a “Deposition Subpoena for Production of Business Records” to the institution. If you use an attorney service to draft this discovery demand, they will also draft a Declaration of Custodian.
Authenticity is easy to understand. Hearsay can be tricky: generally, when a party at a trial tries to enter evidence of a statement, the other side has the right to question the person who made the statement (this is called cross-examination). When the person who made the statement is not at the trial, and ready to be questioned about what they said, this statement may be excluded as hearsay. Certain business records, even though they contain statements, do not require the testimony of the person who made the statement—this is what is called an exception to the hearsay rule. A good Declaration of Custodian can establish that documents are authentic and are exempt from the hearsay rule.
You will need a Declaration of Custodian for all documents you wish to admit as evidence, unless the Expert Rule (see below) applies. If you can’t get one, you will need to subpoena the person who drafted the document.
Warning: Seven years?
Most institutions (e.g., banks) will not hold documents for more than seven years. Keep this in mind if you are getting close to five to seven years from the point that important documents were created!
Warning: Experts and Foundation.
There is an important rule to consider when analyzing documents your expert will rely upon to formulate their opinion. In California the court has the discretion to admit evidence that an expert has relied upon in forming their opinion, when an expert would normally rely upon that type of evidence in doing so. E.g., if an accountant would normally review bank documents when tracing money and you have bank documents that you couldn’t get a Declaration of Custodian for, then the court may admit those documents and the expert opinion which relies upon them.
The operative word here is discretion: the judge does not have to admit other inadmissible evidence relied upon by your expert. This could result in a successful objection to that portion of your expert’s opinion which relies upon the un-admitted evidence.
At Divorce Helpline, we have 25 years of experience coaching clients in navigating the tricky waters of trial preparation. For more information on divorce trial evidence see our previous blog on Two Types of Physical Evidence.