Evidence necessary to prove truth

BY JAN L. WARNER AND JAN COLLINS

Knight Ridder Newspapers

KRT) – Q: When we had our temporary support hearing, my husband presented false information to the court about his income by not telling the judge that he has worked on weekends throughout our marriage and has never reported the money he receives on our tax returns. Because we only had a 15-minute hearing, the judge made her decision based on sworn statements and declarations that were handed to my lawyer that day. Based on his false statements, the judge ordered a much lower amount of support than I need for our two children and me. My lawyer says there was no way to prove that he was lying, and that we will have to wait for a year or more until the final hearing to do something about this. I tried to get a statement from his employer, but he laughed at me. If this is the case, I will be starved out. What can I do?

A: While the oath in family court is no different that that in other courts, a growing number of our readers complain that false statements in family courts are ignored by judges at temporary hearings, and sometimes at other hearings because of expediency.

First of all, we disagree with your premise. It is the responsibility of both litigants to investigate and provide information to the court. Otherwise, it won’t get there for consideration. The judge has no independent authority to investigate each case because participation in the investigative process is a violation of the judge’s ethical responsibilities to be a neutral arbiter of the facts as applied to the law.

Here, you tell us that even you are unable to get the information from your husband’s employer. So how is the judge supposed to get it? When you say that your husband has not reported this income on your tax returns, we assume that you signed those returns with the missing information, a problem in and of itself for both of you. And, if it is true, a problem for your husband’s employer.

While there may be allegations that one party or the other is making false financial statements, the vast majority of these allegations are not dealt with because of time constraints, lack of proof, and the fact that more than 90 percent of these cases are settled. While not a perfect system, because of burgeoning schedules, there is generally little time for judges to get to the meat of every problem before them.

What to do? You need independent information to show that your husband is working extra – other than your unsupported statement. We suggest that you engage a private investigator to take photographs of your husband at his weekend job. Or, find people who will testify that your husband works on weekends. With this information in hand, your lawyer can go back to the judge and seek some type of adjustment in your support.

When you have the proof, take it to your lawyer so he can bring a contempt action against your husband and seek a retroactive modification of the support award based on your husband’s false representations to the Court. If proved, the family court judge can not only grant you the relief you have requested and hold your husband in contempt, but also may have a duty to report your husband to both the local prosecutor for perjury and to the Internal Revenue Service.

By starting this ball rolling, however, you could get tarred by the same brush: Since you have probably signed joint income tax returns with your husband while knowing that he was underreporting his income, you are not an innocent spouse because you received the benefit of his fraud. There are far-reaching ramifications here that you should thoroughly discuss with your counsel before you act.

We found this article listed on the Fort Wayne News – Sentinel website

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SOLOFACT: We have received a number of reader questions lately that deal with one spouse receiving more than 50 percent of the marital property. While unusual, disproportionate or unequal division of marital property can occur under certain limited circumstances. Not knowing the facts of each case, it is difficult to tell why this occurred; however, some of the reasons could be 1) receiving credit for premarital funds that were used toward the purchase of marital assets, or 2) one spouse’s earning capacity being significantly less than the other’s. In any respect, whoever came out on the short end of the stick will be stuck unless there is an appeal.

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(Jan Collins is a writer and editor. Jan Warner is a matrimonial, tax and elder-law attorney. Both are based in Columbia, S.C. Please send your questions to P.O. Box 11704, Columbia, S.C. 29211, or e-mail to flyingsolo(AT)janwarner.us, or see www.flyingsolo.com for some free suggestions and tips.)

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