Issues in Divorce

SPYING ON YOUR SPOUSE’S COMPUTER? What Digital Evidence Means for the Future of Divorce

Like many other things in our lives, technology has changed the face of divorce forever. Whether text messages, cell phone records or email messages, digital evidence has increasingly become part of nearly every contentious divorce case and/or custody issue. With people relying more and more on digital communication and paperless transmissions, the computer has become an even more integral part of daily life.

A recent poll conducted by the American Academy of Matrimonial Lawyers found that 88 percent of its members surveyed had seen a "dramatic increase" in such evidence. Statistics from many electronic discovery and computer forensics firms indicate that more than a third of electronic discovery cases are divorce-related. In divorce, digital evidence can be the most damning in terms of financial deceit/disclosure and/or ex-marital affairs. The evidence can be devastating.

Employing a private investigator isn't the only way to gather evidence in divorce or child custody proceedings anymore. Valid and dependable methods to recover data from computers as part of discovery in divorce proceedings are becoming essential for divorce lawyers. This is particularly true in cases with larger estates, complicated business or real estate holdings or multi-jurisdictional assets. Snooping through files, staking out hotel rooms and snapping photos have been replaced with forensic hard drive examinations, key logging and sophisticated software tracking programs which often provide more concrete and excuse-proof evidence. And, there’s more. There are newer technologies also being used to collect evidence against spouses. Cell phone records are almost always admissible in divorce court, E-Z pass toll records have been subpoenaed to catch cheaters in lies and GPS devices have been sneakily applied to vehicles by suspicious spouses in order to track one’s whereabouts.

In light of this new kind of evidence, it’s critical to hire an attorney and computer forensic expert capable of finding critical information and effectively presenting it in court.

A forensic analysis can serve as a valuable tool in high conflict divorce cases where there is suspicion of wealth transfers or prove infidelity. Information that can be obtained can include:

• e-mail and instant messages
• user names and passwords;
• names and addresses of financial institutions
• asset and/or fund transfers;
• debt information and account activity
• Recovering deleted, encrypted, or damaged file information.

What many people don’t realize is that deleted information is never truly deleted. Re-formatting the hard drive of a computer does not erase stored data; it usually just erases the links that point to where the data can be located. And the harsh reality is that in many instances, the most important evidence is proof that there was the attempt to destroy data. The consequences of discovering undisclosed assets or other relevant information in divorce can be profound. The party that fails to disclose the asset during the divorce process may be required to pay attorney's fees turn over the asset to the other party or to the court in a receivership proceeding in addition to calling into question that party's credibility in the proceedings. Actively pursing this avenue of investigation may be the difference between losing out on significant assets or uncovering a plethora of financial information including investments and real estate holdings even if they are held in the name of another person or sheltered as part of a holding company.

For example, in one particular divorce proceeding that I handled, discovery was served to acquire financial records and emails related to one spouse’s income derived from his business. It was later discovered through emails from this spouse to his business partners, that he was funneling significant funds from the business to three different people as well as a dummy corporation in order to get around reporting the income.

In another case, discovery was used to prove infidelity. This is becoming a more common practice in highly contentious custody proceedings because this evidence can be used to prove one spouse’s priorities are with this “personal relationship” rather than with their children. Another use for electronic discovery in custody issues is using a computer’s search history to prove discrepancies in one spouse’s lifestyle including such behaviors as gambling and pornography.

The digital path left by cheating or financially deceitful spouses provide evidence so powerful, it can't be denied. The law is struggling to keep up with new technology. The divorce laws in many states are evolving to accommodate the increase of evidence extracted from computer hard drives, but the legal bounds are arguably still unclear. Family court judges are faced with tough decisions about the legality of such evidence and in the absence of established laws in certain states addressing digital evidence; they are forced to make difficult judgment calls about what constitutes a violation of privacy.

Divorce is very common in today’s legal landscape and electronic discovery continues to play a critical role. High stakes battles over marriage settlements and child custody arrangements make each attorney’s strategy the key to an optimum outcome.

New California Law a Test?

A Termination of Child Support Doesn’t Automatically Guarantee an Increase in Spousal Support

A new California Divorce law allows a spouse receiving income from child support to seek an increase in his or her spousal support upon the maturity of the minor child. This law, (Family Code §4326), which is set to terminate on January 1, 2011, considers the loss of child support income incurred by a parent when the child becomes no longer eligible for support, (e.g. reaches the age of 18 or graduates high school) to be a “change in circumstances” substantial enough to justify a request to modify their spousal support.

This new law presents a departure from prior court rulings. In a 1999 case, In re Marriage of Lautsbaugh (1999) 72 Cal.App.4th 1131, 85 Cal.Rptr.2d 688, a California Appeals Court reversed a decision granting a wife a $350 increase in her monthly support payments. The wife claimed such an increase was justified because her daughter had graduated from high school, and was no longer eligible for child support.

In reversing the trial court, the Court of Appeals reasoned that the loss of child support payments upon the daughter’s reaching maturity was contemplated by both parties during the initial divorce proceedings and was therefore an expected change. The court went to state that a change previously accounted for, cannot justify an increase in California spousal support. In the end, the court held that when the daughter graduated, her father’s child support obligations terminated.

While the rationale of the Court of Appeals makes sense, the new law effectively nullifies Lautsbaugh and seemingly broadens the definition of a “material change” to include previously contemplated events. In addition, the provision interrelates the two types of support, which have been historically separate and should remain that way.

Although this current state of the law does not go so far as to require California family courts to now consider modifying a spouse’s support anytime a change in financial status occurs, it definitely eases the burden of proof. Whether the parent will be required to show that their expenses, and not those of the child, justify a change in support, remains to be seen. Whatever the eventual outcome, Family Code §4326 will likely be a source of much debate in the coming years, especially if it remains in effect after January 2011.

Texas proceeds with DNA tests this week to try to determine exactly who parents and siblings are in Polygamist Raids

Originally Posted Apr 22, 2008, 01:28 pm CDT
By Martha Neil 

Updated: As the state of Texas proceeds with DNA tests this week to try to determine exactly who parents and siblings are in a controversial custody case that, at last count, involved 437 children, lawyers for the families—as well as some observers—are expressing concern about possible violations of parents' constitutional rights.

No one seems inclined to argue that the state exceeded its authority by removing teenage girls from a situation in which at least 20 of their counterparts living on a ranch run by a polygamous sect reportedly had become pregnant by age 16, or even earlier.

But more troubling is the planned separation from their parents of all other children who had been living at the Yearning for Zion ranch, including infants still being nursed by their mothers, even though there doesn't appear to be clear-cut evidence that at least many of them were neglected or physically abused, according to the Dallas Morning News and other media reports. A total of 77 of the 437 children removed from the ranch earlier this month by state Child Protective Services workers are children age two and younger.

Judge Barbara Walther so far has rebuffed pleas by nursing mothers that they be allowed to continue to care for their babies after DNA testing is completed, reports the Salt Lake Tribune. (However, since this post was originally written, authorities have apparently relented, as far as the babies are concerned. And, meanwhile, a state appellate court has agreed to hear an emergency appeal of the removal of all of the children, as discussed in a subsequent ABAJournal.com post.)

Authorities say they need to separate children from their parents while they investigate, because this will help them to determine what actually happened and proceed with their case without parental interference. However, parents point to minimal or nonexistent evidence of abuse concerning many of the children. And even a state expert admitted in his testimony last week that many of the children apparently have not been physically abused, although he considered the authoritarian role of their church to be "abusive," at least as far as teenage girls reportedly being pressured into "spiritual" marriages with much older men already married to other women are concerned.

The massive two-day hearing last week after which Walther upheld the state's custody of all of the children has been criticized as lacking requisite due process protections mandated under both the Constitution and state law. And Kevin Dietz, an attorney with Texas RioGrande Legal Aid who represents 45 mothers from the Fundamentalist Church of Jesus Christ of Latter Day Saints, said some of his clients did not even receive notice of the legal proceedings, let alone have a chance to tell their side of the story.

"They had no meaningful way to participate, and no evidence was presented against them," he says.

"I think it is an incredible and astounding exercise of police power," James Harrington, a civil rights attorney, tells the Dallas newspaper. "You can't take away a kid from their parents by saying, ‘Hey, maybe later on there might be some abuse.' It's a way of flipping the Constitution around so that they now have to prove they're innocent instead of the state having to prove they're guilty."

However, Jack Sampson, a family law professor at the University of Texas, says the law sets a low legal threshold for temporarily taking custody of children, in an effort to protect them, as the state has done here. "You don't have to prove abuse at that first stage," he says.

Even with the help of DNA tests, figuring out who's who, among the parents and children, won't be easy because of the group's long-standing interrelationships, predicts the New York Times. And the central question of how old many of the teen mothers were when they gave birth, the newspaper says, will, by necessity, focus not on DNA tests but "spotty and ambiguous" community records.

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My Thoughts:

To treat all of these children and families as one big case, as opposed to looking at each child on a case by case basis is a gross miscarriage of justice and an abuse of due process.While the state has an interest in protecting children and preventing child abuse, the parents have a right to have their day in court on an individual basis, and have the state prove on a case by case basis that each individual child is in fact a victim of child abuse and should be removed from their parents.Taking a child away from their parents is a drastic remedy, its a last resort. This case smacks of religious discrimination -- here the state is alleging that all 400+ children have been mistreated by all of their parents without making specific allegations on a case by case basis. This is a tragedy for these families and the children. Many of the children likely have very good family environments. These parents and children are deeply religious and believe in the life they have been living. They should be free to continue to live their lives free from government interference unless the government can prove in a particular instance that a particular parent perpetrated child abuse against a particular child. These children will be scarred for life, they will be removed en mass from their parents and from a deeply religious and insulated world that they are familiar and in many cases happy with and exposed to a secular world, placed in group homes or foster care with people who are secular and do not care about them. This case reeks from  of religious persecution-- this country was founded on the basis of freedom of religion and personal liberty.  The pilgrims came to this country because they were persecuted for their religious beliefs in Europe and could freely practice their faiths in America. The State of Texas and the courts should respect the right of each citizen of this country to determine what religious views they wish to hold, and their right to raise their children and family as they see fit without government interference. You have a right to raise your children as you see fit, and the government should not be able to interfere with your family unless they can prove with a significant degree of certainty, that you are mistreating or abusing your children. To allow otherwise is opening the door to having the government and courts run our families-- it is not far fetched to imagine that in certain states the government could remove your children because you are gay, because you decide to home school your children instead of sending them to public school, because you are opposed to vaccinating your children, because you are a medical marijuana patient, the list goes on. 

Failing to Disclose Financial Dealings During Divorce May Cost You

In a recent case, divorce case in California, a  man was ordered to pay his wife nearly $400,000 for failing to update and immediately disclose changes in his financial status during their divorce proceedings.

After 34 years of marriage, the couple separated and dissolution proceedings ensued. The husband, who reported an estimated net worth in excess of $50 million, failed to disclose several significant transactions, including a 1 million dollar bond and a 5 million dollar residence, as well as the formation of various new companies. Despite numerous formal requests for an accounting by the wife, the husband intentionally omitted the transactions from court filings, claiming that because of his vast wealth, the acquisitions were not material. After learning of his dealings, the wife filed a motion for sanctions and the husband was eventually ordered to pay her $140,000 in fees and $250,000 in sanctions.

The husband appealed the decision, arguing that the transactions were made “in the ordinary course of business” and thus, he had no duty to disclose. The Court of Appeal disagreed and the ruling was affirmed.In determining whether the transactions were “material” the court found that although the total dollar amount of the undisclosed assets was significant in view of his wealth, the husband’s actions demonstrated a pattern of nondisclosure and therefore sanctions were appropriate.

In rendering its decision, the court sent a powerful message that material changes in one’s financial dealings must be disclosed promptly and accurately and the failure to do so violates a fiduciary duty which may result in substantial monetary sanctions.   

Complicated Divorce Rules Criticized by California Supreme Court

The California Supreme Court recently decided to ease the laws for divorces in Contra Costa courts, which have been accused of differentiating too far from state divorce law and not giving people fair shakes during divorce cases. Contra Costa is one of nine counties located in the San Francisco-Oakland Bay area.

A Contra Costa Times story detailed the divorce case of Jeffrey Elkins, a man who was so disgruntled with the way the local courts handled his divorce that he took his complaint to the state Supreme Court.

Until this case, Contra Costa divorce courts had adhered to a Trial Scheduling Order which basically attempts to speed up divorce trials and keep the courts from getting too bogged down. As a result of the Scheduling Order, Elkins and his wife were only allowed to provide written declarations about the facts in their case. If Elkins wanted to submit oral testimony as evidence, he would have to first provide written testimony explaining the oral testimony. Elkins also learned that certain information, like emails and documents about his salary, could not be submitted as evidence.

Elkins claims that his divorce trial lasted about five minutes. He was thus quite miffed when a judge authorized the divorce two weeks later. No one testified in the case, and Elkins was not cross-examined by his wife's divorce attorney or allowed to do so himself because direct testimony was prohibited under the Contra Costa Trial Scheduling Order. Further, he was not allowed to ask the judge how child support payments were determined.

Upon appeal, state Supreme Court ruled that the Contra Costa County Superior Court violated state law with a rule that prohibited people in divorce trials from presenting oral testimony. The ruling means a new divorce trial for Jeffrey Elkins. It also means trial courts in California counties with local rules similar to Contra Costa's will have to change the way they do business. In January, as the Elkins case was pending, Contra Costa County Superior Court changed its local procedure to allow oral testimony, in addition to written declarations, for requesting parties.

On a personal level, Elkins said he feels vindicated by the Supreme Court's decision. "Divorce is a tough thing to go through," said Elkins, a business consultant, whose divorce proceedings started in 2001. "I'm just hoping I can now go back to court to ... come up with a solution and finally get this thing behind us."

What is Parental Alienation Syndrome and How do I Handle It?

Most children in a family identify with and feel affection toward both parents. Even after a divorce, most children will maintain some connection with both parents. However, at times, a child may only have a relationship with one parent to the exclusion of the other. This is called parental alienation syndrome (PAS). PAS is the systematic denigration by one parent to the other with the intent of alienating the child against the other parent. The purpose of the alienation is usually to gain or retain custody without the involvement of the other parent. The alienation usually extends to that parent’s family and friends as well.

It typically occurs when children get caught in the middle of parental disputes, where one parent, often in response to a contentious divorce or separation, successfully manipulates the child to turn against the other parent. In its most extreme form, children report that they despise or are frightened of the targeted parent, and refuse to have any relationship with him or her.

This leads to an impaired relationship with the alienated (target) parent and an absolute loss of parenting as a result of the hostility of the parent producing the alienation. In most cases of high conflict divorce, there are degrees of alienation. In severe cases, the child's once love-bonded relationship with the target/rejected parent is destroyed because the child is utterly brain- washed against the alienated parent.

When these four criteria are present, the stage is set for the development of Parental Alienation Syndrome

1. Visitation or access blocking by one parent
2. False allegations of abuse or unfit parenting against the Target Parent
3. Deterioration in the relationship with the child and the Target Parent since marital separation
4. Exaggerated fear reaction on the part of the child at displeasing the Alienating Parent

If you see any signs of alienation, you should contact an attorney immediately because you need to take immediate action which may involve:

1.       Seeking immediate sole legal and physical custody of child

2.       Limiting contact with alienating parent

3.       Reunification therapy

4.       Have court appoint attorney for child

Professionals suggest that the best way to deal with parental alienation is to keep in frequent contact with the children and let them know you love them. If you recognize any of these signs or believe you are the parent being targeted, the attorneys at Dishon & Block are experienced in handling matters that involve PAS.

Here are some other excellent resources for PAS:

Parents Who Have Successfully Fought Parent Alienation Syndrome
by A. Jayne Major, Ph.D. from her website

Questioning the Mental Health Expert's Custody Report
by Ira Daniel Turkat, Ph.D
from the American Journal of Family Law, Volume 7, 175-179 (1993).

Divorce and Your Pets

Who gets the family pet following a divorce? In most cases, pets are treated just like all other marital property because pets are considered personal property under state property laws. However, this traditional view is beginning to be challenged. Lawsuits are being filed challenging the longstanding view of the treatment of pets in divorce proceedings. Often, the spouse who did not receive the family pet as part of the divorce settlement, is seeking "visitation" or "custody" rights. Most courts are continuing to treat pets as personal property. Therefore, state legislation to establish new rights with respect to treatment of family pets in divorce proceedings is likely to become more common in the near future.

While California has not enacted any special laws to treat pets as anything other than personal property or to specifically authorize "pet visitation," many courts are willing to entertain such requests.  Furthermore, there has been recent legislation that gives pets and pet owners more rights.  Specifically, commencing January 1, 2008, pet owners may seek restraining orders to allow them immediate control and possession of their favorite pet.

Pursuant to Family Code 6320 family law and domestic violence courts are allowed to make restraining orders that will protect your pet.  The restraining orders may include the following:

Ø       You can obtain an ex parte (or emergency) restraining order to allow control of the animal to one person or the other, stay away order, and judicial counsel must come out with forms as of 1-1-09.

§         Issuance of ex parte order (on an emergency basis)

§         On a showing of good cause, grant to petitioner exclusive care, possession, or control of any animal owned, possessed, leased, kept or help by either the petitionert or the respondent or a minor child residing in the residence of petitioner or the respondent.

§         Authorizes a stay away from the animal; and,

§         Forbid respondent from taking, transferring, encumbering, concealing, molesting, striking, threatening, harming, or otherwise disposing of the animal.

§         On or before July 1, 2009, Judicial counsel shall modify court forms to provide specific forms that specify boxes to check off for "pet restraining orders.”

Divorced Dads

There is likely no more difficult challenge for a father than finding himself divorced and no longer living with the kids. Today’s dads are playing actives role in their children's lives, more so than they did even 10 years ago. Despite the fact that more and more dads are the primary care givers for their minor children, some people believe that there is still a bias in the courts toward the mother when determining who should be the primary residential parent.

Being a successful divorced dad--that is maintaining a good relationship with the children despite being divorced from their mother--is an extra burden for many trying to minimize the adverse affects on the children.

At Dishon & Block, we are aware of the affects divorce can have on children and we work hard to handle these cases with concern and sensitivity. We believe, in most cases (where violence or abuse isn’t present) that there are long-term benefits of children having the influence of both parents. We strongly advocate the rights of both parents, depending on our client’s desires. We try, where possible to create and implement a Co-Parenting Plan that has the best interests of the child in mind.

People with Disabilities Are Entitled to a Fair Trial

As evidenced in the recent case re: Marriage of James and Christine C. (1/15/08) 4 Civ G037159, Div 3 (Fybel) 2008 WL 132003, 2008 DJDAR 653, people with disabilities must be accommodated by the family law court. Although disability is a broadly defined term, bipolar disorder, forms of depression and other mental disabilities can serve as a basis for special accommodations such as postponement of hearings.

When President H.W. Bush signed into law the Americans with Disabilities Act of 1990 (ADA) -- the world's first comprehensive civil rights law for people with disabilities, it was clear that the Act prohibits discrimination against people with disabilities in employment (Title I), in public services (Title II), in public accommodations (Title III) and in telecommunications (Title IV).

Each court of law has an ADA coordinator, along with Deputy Coordinators, whose role it is to facilitate accessibility to the Court’s facilities and services for those citizens with disabilities. Under most circumstances, the needs of these populations can be accommodated within each Department or Division, as has been the case historically. However, when circumstances dictate that further measures be taken, those measures are the responsibility of the ADA Coordinator and Deputy Coordinators.

Know your rights and don’t let the court system, your attorney or the other side's attorney intimidate you or limit the outcome of your case by ignoring your rights. Our team of attorneys at Dishon & Block stay abreast on issues and cases concerning ADA rights and are available to discuss the details of your case.

Dividing Retirement Assets in a Divorce

Even through the difficult process of a divorce, it is critical that informed financial decisions are made regarding the division of the property that was accumulated during the marriage. Retirement savings are one of the largest assets many people own, and therefore it usually becomes an important issue in divorce proceedings.

For instance, if your spouse has an employer-sponsored retirement plan such as a 401(k) or pension plan, you're legally entitled to part of the balance. But how do you protect your share? What's to stop your spouse's employer from paying out the benefits to your spouse or ex-spouse, leaving you with little or nothing?

A Qualified Domestic Relations Order (QDRO, pronounced "quad row") can protect your interests. A QDRO is a court order, judgment, or decree related to child support, alimony, or property rights that instructs your spouse's pension plan how to pay your share of plan benefits.

QDROs only apply to plans that are IRS tax-qualified and covered by the Employee Retirement Income Security Act (ERISA). They do not apply to military or government pensions, which are governed by other laws. A QDRO can provide protection that a marital settlement agreement does not, so coverage shouldn’t be assumed just because a divorce decree states a right to part of your spouse's retirement funds.

The attorneys at Dishon & Block specialize in the preparation of QDROs which is an important consideration to ensure that all of the related issues in your marital settlement agreement are incorporated into the QDRO and that your rights are fully protected in a way that a generic QDRO form can't provide.

Our firm has the experience with drafting the necessary court orders to effectuate the division of pension plans.  When there are more complicated issues, our multidisciplinary approach allows us to seek the assistance of actuaries and pension experts who are able to value and or assist in the division various pension plans.