I subscribe to the Family Lawyer Magazine.  One of its features is a column, “What is the Best Advice That You Ever Received”.  The magazine is printed quarterly, and in the fall section, they had a numbe of inciteful and interesting comments.   One lawyer commented that credibility is the most valuable asset.  He stated that once one of his clients was caught in a lie, it was very difficult for him to convince the Judge that he was credible, even though he was sorry.  I think this is true for attorneys as well. Once a Judge or colleague of an attorney believes an attorney is dishonest, you as a client will be at a disadvantage. Integrity is everything.

 Another attorney advised people to get more with honey.  He identified the honey as what was most important to the other side and that sometimes you need to compromise on those issues to get what you want.  By way of example, he explained that he had a case where the father’s relationship was very important to the child, and he advised his client to ease up on access, give the father more time, and to be more of a co‑parent, and as a result she got a better financial settlement.

  I enjoy this column, and after I read this issue, I thought about what was one of the best pieces of advice I ever received.  There have been many, and perhaps in future blogs I will share more with you.  However, the one that came to mind first and foremost was something that Justice Sunshine, when he was a Judge in Staten Island said to me as a young attorney, and to the clients and opposing counsel (who refused to settle) and that was this: “What you know and what you can prove are two very different things.”

 Justice Sunshine is now the statewide coordinating judge for all the matrimonial cases in New York State.  I find myself often quoting Justice Sunshine. I add a caveat to his quote.  I now say that what you know and what you can prove may be two different things, and then ask, “What will cost to prove what you need to prove in order to be successful.”  Is it worth it?  Part of my job as an attorney is to constantly evaluate what the law is, what evidence I have, and what it will cost my client to prove what they need to prove.  For instance, when someone claims that there is a hidden bank account; however, has no idea what bank it might be or whose name it may be in.  It may be that the client is working off the books and has another job.  It may be that a wife is currently residing with her boyfriend, but they have submitted documentation that the boyfriend has a separate residence, and that he does not reside there continuously.  In each of these scenarios, if you are trying to prove something, you would need to not only have a trial and present evidence, you may also need to employ the services of other professionals, such as a private investigator. A private investigator would have to conduct surveillance. In the case of the live- in boyfriend, a P.I. would have to gather evidence of continued residence for a sustained period of time. This time period may be for 60 to 120 days.

  It may be that you need to subpoena every bank in the area where the case is pending to see if there are any other bank accounts that were not disclosed and do not appear on the tax returns.  This takes a lot of time and energy that you’ll be paying your attorney for. Attorney fees add up.  It may be that there is a claim that a person abuses alcohol, and as a result should have more limited or supervised time with their child.  However, it is very difficult to prove alcohol consumption.  There is no specific test except if someone is tested right after they drink, or a breathalyzer is used.  You may need to have a private investigator show that they are drinking at a bar, or that they are driving while intoxicated.  If you at least have a witness to this you may be able to request a breathalyzer

Again, all of this takes a lot of time, energy and money.  If someone has a business, even if a financial accountant is hired to determine the value of the business, if there is additional information you know about the business that would increase its value such as cash payments and is not documented in the books and records, that may also be difficult to prove. If you do hire a private investigator and you find out that the spouse is at a bar a couple of nights a week, that doesn’t necessarily mean that he or she has an alcohol problem.  Just one instance in and of itself does not make a case.

If there is an instance where the spouse is related to someone, and there is a claim that their mother or father is giving them money,  or that they are in fact paying rent, or helping them in some way, without that parent stating under oath that they are, it’s going to be your word against theirs.  Sometimes it’s just best to look at what evidence you have, try to come up with the best outcome, and as I tell my clients if something changes in the future, especially with regard to custody or visitation you can go back to court.  It is always a best interest test.  Again, one must be pragmatic and understand that a divorce is a legal action and there are rules of evidence, and you must be able to prove whatever allegations you are making.  Allegations alone are not enough without the requisite proof that is needed.  Without accepting this, you will waste a lot of time, energy and money.