One of the most common complaints I hear from clients relates to Declarations. Generally, in Family Law Declarations are the written statements prepared by a party to tell their side of the story or to support their request for specific orders.
Declarations are required to be signed by the declarant under penalty of perjury. This means you are declaring that what you say is the truth and that if you knowingly lie, you will be subject to penalties.
Yet many times clients read the other party’s declaration and become outraged because they feel like it is filled with lies, half truths, exaggerations, and fabrications. Not only are the statements themselves upsetting to the client because they are not true, but the client is left to wonder why there are no consequences for the opposing party if they continue to lie.
I tell my clients that Declarations are just one side of the story, even if they are wrong, you will have a chance to tell your side. I’m sure that the other side feels the same way when they read their declarations. It is nearly impossible for clients to be unbiased in their recollection of the facts. Two declarations can describe the same situation, such as a custody exchange, and they can be completely different.
It is the court’s job to use its experience and expertise in deciding what instance is closer to the truth. A declaration is important because it frames the issues for the court and can be very helpful or damaging to a client’s case if not done properly.
Regarding penalties, I have rarely seen the court punish someone for perjury. Maybe it is because the court has limited resources that it does not want to pursue this issue. If it did, then it would probably take all the court’s time since each statement could be contested as to its truthfulness. It is generally not good practice to pursue use resources to fight these issues, but rather to use the declarations against a person when they are testifying.
That is why courts prefer to have a live witness testimony over a written declaration because they can observe the person’s behavior, voice, facial expressions, and body language to see if they are credible. Many times if I am suspicious of a declaration I will question the declarant on the witness stand to see if they are consistent.
A declaration is a powerful tool if used correctly but it can also be fatal if used inappropriately.