What Can Be Done When You Learn That Your Spouse Has Committed Fraud In A Family Court Hearing?
A client once told me after a temporary hearing in family court that his wife lied in her sworn affidavit. He had evidence to prove the lie and wanted my advice on how to proceed.
Committing fraud in a family court hearing is perjury. A person commits perjury when they knowingly submit false information in a sworn affidavit in family court. Perjury is defined by statute and states that it is unlawful for “a person to wilfully give false, misleading, or incomplete testimony under oath in any court of record, judicial, administrative, or regulatory proceeding in this State”. S.C. Code Ann. § 16-9-10
Perjury is a felony and punishable by up to 5 years in prison. While I am sure there have been prosecutions for committing perjury in family court, I have not seen it. On the other hand, I have seen plenty of lies! Given the large volume of serious crime being handled in our criminal courts local prosecutors don’t seem enthused about going after a hurt spouse lying to get an advantage in a custody or alimony case. There are simply bigger fish to fry, and if the offending party gets caught and is required to pay attorney fees to the other side, that is generally considered to be punishment enough.
So how do you prove a lie? The method of gathering the necessary proof is specific to the unique facts of the “false, misleading, or incomplete testimony”, and the legal process that must be utilized to establish the proof necessary to convince a court is tedious, time consuming, and expensive.
One of the first places lawyers will look are to affidavits. The affidavits are usually submitted at a temporary hearing and they constitute sworn testimony. Lawyers will compare them with other known and truthful evidence and take meticulous notes on all inconsistencies. This is the most efficient and cost effective approach as it will usually involve just a few hours of the lawyers time in reviewing the evidence.
Many times we don’t have the information we need and we must get it from somewhere. In these cases an attorney will request information from the opposing party by way of “Discovery”. These are formal requests for disclosure of information governed by our rules of civil procedure. Simply preparing the discovery requests can take several hours, while reviewing the responses can take much, much longer.
Sometimes either the other side does not have what we requested in discovery, or we don’t trust what was produced. Either way we will usually subpoena documents directly from the source. Preparation of the subpoenas is not expensive, but paying for, reviewing and organizing the documents received can be extremely time consuming and expensive, and may even require the retention of an additional professional, such as a CPA.
Depositions are utilized as a way of getting sworn testimony from a person prior to trial. Depositions can be an invaluable tool for a litigation attorney. The transcript of a deposition can be used at trial to “impeach” or challenge the truthfulness of the deponent and make their testimony less believable. Preparation for depositions can take several hours at the very minimum, and testimony can last half a day to several days. The written transcript of the depositions must then be purchased from the court reporter, meticulously reviewed by the attorney and compared with other known and truthful evidence.
There are cases, and we have certainly had them, where all of these tools were necessary. In many cases much less will suffice. Ultimately the decision as to how far to go must be made in a “cost versus benefit” analysis. It is possible to spend 10’s of thousands of dollars investigating perceived untruthfulness, but if at the end of the day it really won’t effect the ultimate outcome, it is likely not worth your time and energy. Remember? This is the kind of behavior from your spouse that caused you to request a divorce in the first place, why should you expect anything less!