The Truth Will Set You Free: Why Credibility is Currency in Divorce and Custody Cases

AvatarErik Arena, Principal

Most of us have done things we are embarrassed about or ashamed of — things we would rather not share in polite company, for fear of being judged.  We omit, shade, deflect or deny for the sake of maintaining appearances. 

This tendency surfaces frequently in family law courtrooms across Maryland and the District of Columbia, where judges and magistrates are, in fact, tasked with assessing the fitness and credibility of spouses and parents every day. Spouses and parents must decide, sometimes rather quickly, whether or not to tell the unvarnished truth about themselves, or a glossier, filtered version. All too often, they choose poorly. 

Why? For two reasons:

  1. Each lie of avoidance, omission, or denial erodes your credibility with the Court, which can be very hard to overcome in totality

Of course, the goal is to put yourself in the best light. However, that is done by being honest – not be being beyond reproach. Simply put, it is better to present to the Court as an honest, flawed person, than one who is untruthful. This applies to just about everything not otherwise protected by the 5th Amendment privilege against self-incrimination. 

Believe it or not, the Court has heard it all at one time or another. And none of us is perfect. A few lies, denials, or omissions, particularly those that are verifiably false, can be enough to taint the Court’s impression of your overall character for truthfulness and place a cloud over all of your testimony [and future testimony in future actions]. That can be far more costly than the embarrassment, humiliation, or damage done by admitting your mistakes. 

  • In family law cases, many important facts cannot be corroborated by independent testimony or documents, meaning key issues can be decided solely based on the credibility of the parties. 

Trying to wallpaper over character flaws with deceit can have grave consequences for other important factual determinations that, oftentimes, must be based solely on a party versus party credibility assessment [due to the absence of corroborating testimony or documents]. 

So, what kinds of critical fact determinations can end up being made solely based on credibility? I have listed a few examples below to illustrate their magnitude:

  • Who did the majority of the parenting during the children’s formative years;
  • Whether or not you told your spouse it was ok not to go back to work;
  • Whether or not the money you received from your spouse’s parents to buy your first home was a gift to your spouse or to you and your spouse;
  • Whether or not your or your spouse’s spending was a cause for friction during the marriage;
  • Whether or not you had an affair years ago, or even recently (for more on this, check out the blog post from my colleague Liz Estephan: “You Committed Adultery. Now Tell Your Divorce Lawyer.“;
  • Whether or not the cash you withdrew from your joint checking account was spent on family expenses or other, less beneficial purposes;
  • Whether or not the money you wired to family was discussed with your spouse prior to so doing;
  • Whether or not you drank to excess or used illicit substances;
  • Whether or not you humiliated or belittled your spouse or children in private. 

As you can see, being dishonest in some areas, or several, can call into question the credibility of the testimony you will give on other, more weighty facts critical to the Court’s determinations of property, alimony, or child custody. 

So, when faced with telling the (perhaps) ugly truth or saying what you think the Court wants to hear, there really isn’t a choice. Only by being truthful can you mitigate the damage done to the Court’s assessment of your character and, consequently, the merits of your case. The slope is far steeper and slipperier for those lacking in candor.

For more information, contact Erik at eparena@lerchearly.com or 301-657-0725.