BACK TO BLOG September 4, 2019

What is the Burden of Proof in Texas Family Law Cases?

First, what is a “burden of proof”? Basically, a burden of proof is the measure of the amount of evidence required by a court to prove a fact.

“Beyond a Reasonable Doubt” – This is the burden of proof required in criminal cases. It simply refers to the amount of proof required to eliminate any reasonable doubts about the fact. For instance, in a murder case, it would be reasonable to question whether a person pulled the trigger. It would not be a reasonable to question to think an alien committed the murder. If the prosecutor provides evidence that the shooter pulled the trigger, then the prosecutor has eliminated the reasonable doubt.

“Preponderance of the Evidence” – This simply means that a fact is more likely true than not true. Stated differently, this is like a balancing test. If a judge has to decide something by a preponderance of the evidence, he or she will decide whether the fact by whether it is more likely true than not true.

“Clear and Convincing Evidence”– This requires a person to show the truth of a fact or matter in controversy with ‘reasonable certainty.’ Another way of saying it would that the fact must be proven in such a way to create a ‘firm belief.’ This is a higher burden than “preponderance of the evidence” but not quite as high as “beyond a reasonable doubt.”

Burden of Proof in Texas Family Law Cases

In Texas family law matters, if one of the parties is asking a judge for something, it is the burden of that party to provide the court with the evidence required to make an order giving that something.

For instance, if a Husband is asking a judge to order the Wife to turn over certain documents, it is the burden of the Husband to show the judge why the documents are relevant, that the Wife likely has the documents, and that the Husband has made attempts to get those documents but she has refused to turn over the documents.

In Texas divorce and family law matters, there are several common issues that pop up.

Separate Property – If a person is claiming a particular asset is separate property and should not be considered community property, that person has the burden of proving it is separate property by “clear and convincing evidence.” Some of the ways to meet this higher burden is through documentation or through witnesses with specific information and knowledge about the property.

Adultery – Adultery must be proven by clear and convincing evidence. Suggestion and innuendo are not sufficient to prove adultery. However, a finding of adultery can be based on circumstantial evidence. In short, you don’t have to catch your spouse “in the act” but you do have to have more evidence than “I think he’s having sex with her.”

Termination of Parental Rights – In order for a judge to terminate a parent’s parental rights, there must be clear and convincing evidence that the parent engaged in one or more of the prohibited acts set out in the statute (e.g. – abandonment, endangerment, non-support, etc.).

By no means is this an exhaustive list.