Divorce And The Hearsay Rule

By Richard A. Marcus, Esq.


That’s hearsay! Non-lawyers love throwing around the word “hearsay.” But do they really know what it means? Hearsay is an out of court statement offered to prove the truth of the matter being asserted. Try explaining that to your nine year old. I hope you have better luck than I did. With that kind of definition, it is easy to understand why most non-lawyers are clueless. So let me try to explain it a little better. If someone comes into court to say something and they are offering that testimony to prove what they are saying is true, that statement is hearsay.

For example, “He told me he was going to beat me up.” If you are saying this in order to prove that this is what he said, it is a hearsay statement. If the statement is being offered for another purpose, such as to show that you were afraid of him when he made the statement, or that he was angry at you at the time he made the statement, the statement is not hearsay, because it is not being offered for its truth. In other words, it doesn’t really matter whether what he said was true. The statement is being offered to show either his anger or your fear at the time the statement was made.

What about the statement, “I told her, yes, I’ll sell you the car for $5,000.00.” This is not hearsay. It is an act of independent legal significance. The statement is being made to demonstrate the fact that certain things were said or done, which in this case pertains to the formation of a contract.

So what about family law cases? When one spouse is talking about something the other spouse says, in most cases the evidence is admissible as a “party admission”, which is an exception to the hearsay rule. “Respondent told me that if I divorced him, he would seek sole custody of the kids.” That statement would not be hearsay because it is a party admission.

Another thing to keep in mind is that in family law cases, Judges tend to consider the testimony of children even though that testimony is hearsay. So next time one of your friends throws around the word “hearsay,” chances are pretty good that he has no idea what he is talking about.


For all of your family law and business litigation needs, contact The Law Offices of Richard A. Marcus (661) 257-8877.