The Burden of Proof and Presumptions in Matrimonial Actions

The burden of proof in an action is determined by the public policy of the law to which the action relates, while a presumption relieves a party from having to actually prove a fact. Unlike most other types of actions, the parties to a matrimonial action have many different burdens of proof to meet, depending upon the ancillary relief they seek, or oppose. The plaintiff in a divorce action has the burden of proof with regard to the allegations of her complaint for divorce and her requests for ancillary relief, such as maintenance, custody, child support, equitable distribution and counsel fees. The defendant has the burden of proof with regard to his affirmative defenses, counterclaims, and requests for ancillary relief. Domestic Relations Law §211. The parties are aided in meeting their burden of proof by presumptions. An attorney trying a matrimonial action cannot competently try the case without knowing the burdens of proof and presumptions that are applicable in that action.

The function of a standard of proof is to “instruct the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication.” The Supreme Court has described three standards of proof for different types of cases. At one end of the spectrum is the civil case involving a dispute between private parties. Since society has a minimal concern with the outcome of private suits, plaintiff’s burden of proof is a preponderance of the evidence. The litigants share the risk of error in roughly equal fashion. In a criminal case the interests of the defendant are of such magnitude that the standard of proof is designed to exclude as nearly as possible the likelihood of an erroneous judgment. This is accomplished by requiring that the state prove the guilt of an accused beyond a reasonable doubt. An intermediate standard of proof, “clear, unequivocal and convincing” is used in civil cases involving allegations of fraud or some other quasi-criminal wrongdoing. The interests at stake in those cases are deemed to be more substantial than mere loss of money. Addington v. Texas, 441 U.S. 418 (1979)