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He said…She Said: Credibility in Divorce Actions

In matrimonial actions, it is not uncommon for the parties to have different versions of the circumstances regarding material issues in the action. The differing accounts may be unintentional, merely based upon a strong belief, or an intentional misrepresentation to further a litigational agenda. Whichever the reason, each serves to prolong the litigation and increase its expense, as a court of law bases decisions on facts.

It goes without saying that credibility is crucial in matrimonial actions, as when faced with a situation where all else is equal, or when an issue can potentially have two different outcomes, a court will look to the party who is more believable.

Parties can enhance or destroy their credibility by the way he or she conducts him/herself during the litigation in connection with what he/she says, does or does not do. Examples can be: failing to appear in court, non-compliance with court orders or other court directives, or acting in a frivolous manner. Not only can these examples adversely affect credibility, but also may result in financial or other types of penalties and sanctions.

The easiest resolution of he said/she said situations is generally reference to a document or recording, which is certified/verifiable. In the absence of same, credible testimony is required.

Credibility and the trust of a court is built over time. Once this credibility is destroyed, it is virtually impossible to repair. Thus, as I often tell clients, it is always better to “be on the side of the angels” than to have to explain misconduct to a court.

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