There Must Be Sufficient Evidence to Support Divorce

Posted on October 24, 2007 by Jimmy Verner
When spouses agree to a divorce, a divorce decree is prepared, and the divorce is "proved up."  Technically, a prove-up is a trial.  One or both of the spouses testifies about the grounds for divorce, custody and visitation for the children and the division of the community estate. 

Prove-ups also are necessary in default cases.  A default case is one where the other spouse is served with citation (or waives service) but does not file pleadings with the court, make any agreements with the filing spouse, or show up for the prove-up. 

In both types of cases, a busy court docket and the lack of any objection to the divorce can result in a curtailed prove-up.  But all divorce decree must be supported by sufficient evidence.  It can be a mistake to shorten a prove-up because then a spouse can appeal on the ground that the evidence is insufficient to support the decree.

We've written about this issue before, in Newsletter entries for January 8 and February 26, 2004.  The El Paso Court of Appeals has highlighted the problem again in the recent case of Giron v. Gonzalez. 

By agreed temporary orders, Ms. Giron had temporary custody of the children.  Mr. Gonzalez paid her child support.  But Ms. Giron failed to appear at the divorce hearing.  Mr. Gonzalez obtained a divorce by default against Ms. Giron, alleging no-fault grounds, adultery and cruelty.  The trial court granted him sole custody of the children and suspended Ms. Giron's visitation with the children.  Finally, the trial court forgave past-due child support owed by Mr. Gonzalez.

On appeal, the El Paso Court found that Mr. Gonzalez did not introduce enough evidence into the record to support any finding but no-fault divorce.  To demonstrate its point, the Court quoted the entire prove-up which is copied in the extended entry.
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Sam Spade and Snooping for Evidence

Posted on August 24, 2007 by Jimmy Verner
Back in the days before no-fault divorce, it was important to "get the goods" on the philandering spouse.  Images of Sam Spade bursting into a room at the Notell Motel, flashbulb exploding, come to mind.


www.humphreybogart.com		 But those days are no more - or are they?  A spouse's conduct can affect property division and what rights that spouse will have with respect to the children.  Moreover, investigating a spouse can yield other important information unrelated to sexual misconduct - drug or alcohol abuse, criminal activity, gambling and the like.  Locating a spouse at a specific point in time also can provide an alibi if that spouse is accused, for example, of assaulting the other spouse at that time.

Although the days of Sam Spade are no more, other sources of information provide opportunities to "track" a spouse in different ways.  These ways - some obvious, some not so obvious - include:
  • Credit card statements:  These statements show where a person was, often show what sorts of things were purchased, and can allow estimates of how many people were there (as in restaurant receipts).
  • Florists:  It is amazing that men will use the same florist to send flowers to both their wives and their girlfriends.
  • Cellphone records:  Although a cellphone record cannot pinpoint a person's location, it can yield a wealth of information about who is calling and being called.
  • Tolltag records:  These records allow pinpointing of a person's location at a specific time - assuming, of course, that the car is bring driven by that person.  
Have you ever looked at a photo of your house taken from a satellite?  Perhaps some day we will be able to track people by photographs from space.  For now, other methods must suffice.
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