Courts do not cause people to lie in divorce and child custody disputes. Courts do, however, have enormous influence over whether lying works.
That distinction matters.
Most people do not need a judge to tell them that lying under oath is wrong. And the determinedly dishonest litigant is not likely to be reformed by a lecture about candor and cooperation.
Incentives change behavior here. If lying produces an advantage, costs little, and is rarely corrected, expect more lies. If lying is exposed, the advantage is taken away, and meaningful consequences follow, lying becomes a much less attractive litigation strategy.
That is not merely a fairness issue. Preventing dishonesty makes cases faster, less costly, easier to settle, and easier to decide correctly.
The Lies That Pay
Consider a false allegation that produces an immediate parenting restriction. At the beginning of a case, the court may not know whether the allegation is true. Sometimes temporary caution is justified. The problem arises when the allegation is never adequately tested.[1] Months pass. Supervised parent-time becomes the existing arrangement. The child becomes accustomed to it. Then the court hesitates to change the arrangement because changing it would be disruptive. The allegation did not merely obtain a temporary precaution. Delay converted the precaution into evidence supporting its own continuation.
Financial dishonesty can work the same way. A party understates income, exaggerates expenses, conceals an account, or claims an inability to work that the evidence does not support. Temporary support is calculated from incomplete or inaccurate information. Months later, even if discovery exposes the problem, thousands of dollars have changed hands and the temporary figure has become the negotiating anchor.
Or consider parent-time interference. One parent repeatedly prevents contact. The other complains. Nothing significant happens. Eventually the child is reluctant to see the excluded parent, and that reluctance becomes a reason not to restore the lost time.
Different facts. Same strategy: Get the advantage now. Make the other side spend time and money proving what happened. Then let delay help preserve what you obtained.
If that strategy works often enough, many people (in my experience most people other than the highly principled) will use it.
The Adversarial System Is Supposed to Help Find the Truth
Judges and commissioners understandably cannot investigate every factual dispute themselves. Nor should they have to.
One of the strengths of the adversarial system is that the parties have powerful incentives to test each other’s claims. If my opponent understates income, I have reason to obtain the records that prove it. If my opponent falsely describes the parenting history, I have reason to produce the texts, calendars, school records, witnesses, and other evidence showing otherwise. If an accusation is false, the accused party usually has a stronger incentive than anyone else in the courtroom to expose it.
That division of labor is useful. It helps keep judges and commissioners from having to become investigators themselves.
But it works only if courts let the adversarial process do its job.
When one party produces evidence showing that the other party’s story may be false, the answer cannot be to wave it away because the calendar is crowded. When the evidence offered in support of an important allegation is unreliable, unsupported, hearsay-riddled, internally contradictory, or simply insufficient, the court should not fill the evidentiary hole with intuition.
And courts should also be careful not to mistake genuine, proportional, persistent discovery for abuse. Abusive discovery exists, but discovery is not abusive merely because it is inconvenient, expensive, or aimed at facts the other side would rather not disclose. If a party makes a consequential claim, the opposing party must have a fair opportunity to test it. Courts should distinguish between discovery that increases cost without increasing knowledge and discovery that costs money because reliable fact-finding costs money. Otherwise, the system creates a perverse incentive: make the allegation cheaply, then accuse the other side of “over-litigating” when it tries to prove the allegation false.
If the evidence proves the point, make the finding. If the evidence disproves it, make that finding. And if the evidence is not sufficient to decide the issue fairly, say so. “I cannot determine this on the record before me” is a legitimate judicial conclusion. Tell the parties what remains unresolved. Give them a reasonable opportunity to present the evidence necessary to decide it. Set the matter for prompt review. That is far better than disguising uncertainty as a vague “concern” and then allowing a temporary order based on uncertainty to harden into the status quo.
Lie Prevention Is Case Management
There is a tendency to think that closely examining disputed facts takes too much court time. Sometimes it does. But failing to examine them can take much more.
A denied parent-time exchange that is addressed promptly may require one hearing. A denied exchange that produces no meaningful response can generate another denial, another motion, competing declarations, a request for make-up time, an attorney-fee dispute, and eventually a finding that these parents simply suffer from “high conflict.”
An inaccurate financial declaration corrected early may require supplemental records. Let it become the basis of a support order and the court may later face subpoenas, motions to compel, expert testimony, a petition to modify, requests for retroactive relief, and another attorney-fee fight.
A serious factual allegation that is squarely addressed is one dispute. Leave it unresolved and the parties may spend months litigating its consequences.
Fact-finding costs time. So does failing to find facts. And the second bill is often much larger.
Courts also need to acknowledge their limits. Judges and commissioners are not omniscient or infallible, and pretending otherwise weakens the system. Better judging comes from recognizing those limits and compensating for them: demand reliable evidence, allow meaningful testing of disputed claims, admit when the record is insufficient, and correct mistakes when they become apparent.
Honest mistakes are inevitable and forgivable when made by people conscientiously trying to get the facts and law right. What is harder to forgive is indifference dressed up as certainty—phoning in the analysis, waving away evidence, and calling the result justice. “Your Honor” should describe a standard of conduct, not merely a form of address.
The Answer to Exploiting Limited Court Resources Is Not to Reward It
Some litigants know perfectly well that courts have limited time and attention. They count on it.
They bury important facts in mountains of irrelevant material. They make allegations that take thirty seconds to state and thousands of dollars (and many a day or week or month) to disprove. They provide incomplete financial records and dare the other side to chase them. They violate orders in ways that seem individually too small to justify a hearing, knowing that the cumulative effect can be enormous.
The wrong response is to let the misconduct succeed because policing it is inconvenient.
That teaches exactly the wrong lesson.
The right lesson is: Not in this courtroom.
This does not mean being a hanging judge. It does not mean sanctions every time somebody loses a factual dispute. Honest people can be mistaken. Memories differ. Evidence can be incomplete. Reasonable minds can differ over what the truth is (e.g., how much is that self-employed spouse really earning?). An allegation that cannot be proven is not necessarily a lie.
But once the evidence establishes knowing deception, deliberate concealment, repeated obstruction, or intentional violation of clear orders, the response must have teeth.
Take away the benefit obtained through the misconduct. Award attorney fees when the law permits it. Make credibility findings where warranted. Correct orders built on false information. And when a litigant repeats the misconduct after being warned, stop nibbling at the edges. Impose sanctions severe enough to end the behavior and make the lesson unmistakable: try it again, and the consequences will be crushing.
Otherwise, what exactly is the incentive to stop?
A litigant who lies, gets six months of advantage from the lie, and eventually ends up exactly where truthful disclosure would have put him in the first place has not been deterred. He received six months of benefit for trying. That is a risk-free option.
Making Honesty the Better Strategy Benefits Everyone
Lie prevention is not primarily about punishment. It is about making and keeping the system just and equitable.
The truthful litigant spends less money exposing fabrication. Lawyers spend less time conducting discovery whose only purpose is to prove that sworn statements were false. Judges and commissioners see fewer repeat motions. Children spend less time living under temporary arrangements produced by disputed claims. Settlements become easier because neither party believes misconduct is the best way to improve bargaining position.
And the genuinely bad actors learn something important: exploiting the court’s limited time and attention is more likely to hurt them than help them.
Courts cannot eliminate lying. They do not need to. They need to stop making it profitable.
When lying works, you get more of it. When it does not, you get less.
Utah Family Law, LC | divorceutah.com | 801-466-9277
[1] Some of the most effective lies exploit not only sympathy but the decision-maker’s own self-interest. “I’m under attack—save me and the children” is powerful because it raises the perceived cost of skepticism. If the court imposes restrictions on a falsely accused person, few people will criticize the court for being “too careful.” But if the court declines to impose restrictions and something bad later happens, the court may be blamed for not doing enough. That creates a temptation to impose fake precautions and fake protections—not because the evidence justifies them, but because they protect the court from criticism. And when the court calls that “caution” or “protecting the children,” it is telling its own lie about what it is doing. The decision is not being driven by a just analysis of the evidence, but by institutional self-protection. That rewards the very allegations most likely to exploit sympathy, fear, and the court’s own incentives. The answer is not to ignore danger. It is to find out whether the danger is real and act accordingly. ↩