California Divorce Blawg

Text Messages Can Spell Divorce

Text messaging has exploded as a communications tool.  I would venture a guess that it is catching up on e-mail?  Today Law.com featured an article by National Law Journal reporter Tresa Baldes detailing how text messages are coming into play in divorce cases:

Divorce lawyers have found a new smoking gun to wave around in court: text messages.

Infidelity, bad parenting or threats -- you name the issue in marital disputes, family law attorneys say, and the evidence can be found in text messages sent over hand-held gadgets.

The unfaithful, in particular, are paying a high price for their salacious messages. "In the sixties, we had private investigators bursting into hotel rooms to catch cheating spouses," said Paul Talbert of New York's Chemtob Moss Forman & Talbert. "Now it's simply as easy as taking a BlackBerry or phone off the dresser."

Talbert is both relying on texts to prove marital troubles and defending those who get busted over their careless words. For example, he recently represented a woman whose suspicious husband picked up her BlackBerry while she was in the shower and discovered messages that showed that she was having an affair with a co-worker.

The result? "Well, it produced a quick settlement," said Talbert, who offered some advice for the soon-to-be divorced. "Change your password if you're going through a divorce ... and don't use your new girlfriend as your password."

Text messages also proved embarrassing for Nevada Gov. Jim Gibbons, whose estranged wife has alleged in court documents that Gibbons had extramarital affairs with two women, including one to whom he allegedly sent 860 text messages on a state cell phone. Gibbons publicly apologized for sending the texts -- which he claimed were business-related -- and reimbursed the state $130. His divorce is not final yet.

Text messages came up in the high-profile divorce trial of multimillionaire George David and Swedish countess Marie Douglas-David, but this time the texts weren't about infidelity. Instead, the wife's lawyer accused the husband in court of sending his wife a text message on her birthday because he didn't want "to speak with her." Douglas-David wants $100 million, plus $130,000 a month in alimony, from David, who says she's entitled to just $43 million under a postnuptial agreement.

Text messages are playing into custody battles, too. Lenorae Atter of Jacksonville, Fla.'s Wood, Atter & Wolf is handling a case in which text messages are being used to show that the children are having a hard time living with their mother. The kids, she said, are sending texts to their father about problems with their mother.

Atter has also used text messages to help women obtain restraining orders against abusive husbands, who send threatening messages to their wives. She said that, while e-mails are pretty standard evidence now in family law matters, "text messages are slowly but surely coming into the fold."

Please click here for the original article.

Please be sure to visit www.hardinglaw.com, the website for the law firm of Harding & Associates, for more information on California family law.

Tell-All PCs and Phones Transforming Divorce

The age-old business of breaking up has taken a decidedly Orwellian turn, with digital evidence like e-mail messages, traces of Web site visits and mobile telephone records now permeating many contentious divorce cases.

Spurned lovers steal each other’s BlackBerrys. Suspicious spouses hack into each other’s e-mail accounts. They load surveillance software onto the family PC, sometimes discovering shocking infidelities.

Divorce lawyers routinely set out to find every bit of private data about their clients’ adversaries, often hiring investigators with sophisticated digital forensic tools to snoop into household computers.

“In just about every case now, to some extent, there is some electronic evidence,” said Gaetano Ferro, president of the American Academy of Matrimonial Lawyers, who also runs seminars on gathering electronic evidence. “It has completely changed our field.”

Privacy advocates have grown increasingly worried that digital tools are giving governments and powerful corporations the ability to peek into peoples’ lives as never before. But the real snoops are often much closer to home.

“Google and Yahoo may know everything, but they don’t really care about you,” said Jacalyn F. Barnett, a Manhattan-based divorce lawyer. “No one cares more about the things you do than the person that used to be married to you.”  Click here for the whole story.

Please be sure to visit www.hardinglaw.com, the website for the law firm of Harding & Associates, for more information on California family law.

Case Law Development: Divorce Courts may not Prohibit Oral Testimony

The California Supreme Court has invalidated a county court rule that required divorce trials be submitted on written declarations and prohibited oral testimony except in “unusual

circumstances.”  The rule also required parties to establish in their pretrial declarations the admissibility of all exhibits they sought to introduce at trial. A divorce litigant whose evidence was excluded because he had failed to establish its admissibility in the pretrial stage challenged both sets of rules. 

The court acknowledged that local courts have rulemaking authority, however, "local courts may not create their own rules of evidence and procedure in conflict with statewide statutes."  Avoiding the constitutional issues presented by the case, the court analyzed the statewide evidence and procedure statutes, the caselaw concerning hearsay admissibility, and the history of trial procedure in the state, concluding that the local rule conflicted with these statewide evidence rules regarding hearsay.

The Supreme Court acknowledged that the local rules were designed in response to increasing case loads and limited judicial resources.  However, on balance, that did not justify the violation of basic trial procedures.

That a procedure is efficient and moves cases through the system is admirable, but even more important is for the courts to provide fair and accessible justice. In the absence of a legislative decision to create a system by which a judgment may be rendered in a contested marital dissolution case without a trial conducted pursuant to the usual rules of evidence, we do not view respondent’s curtailment of the rights of family law litigants as justified by the goal of efficiency. ... While the speedy disposition of cases is desirable, speed is not always compatible with justice. Actually, in its use of courtroom time the present judicial process seems to have its priorities confused. Domestic relations litigation, one of the most important and sensitive tasks a judge faces, too often is given the low-man-on-thetotem-pole treatment.” 

Regarding the court's sanction of excluding evidence for failure to establish admissibility in pretrial proceedings, the court concluded that "The trial court abused its discretion ... by excluding the bulk of his evidence simply because he failed, prior to trial, to file a declaration establishing the admissibility of his trial evidence.... The sanction was disproportionate and inconsistent with the policy favoring determination of cases on their merits."

Elkins v. Superior Court (California Supreme Court August 6, 2007)  Please click here for the entire Law Professor Blog article.

Opinion online.

FasTrak to the courthouse

As the number of San Francisco bay area cash-free bridge commuters rises, so do the ranks of divorce lawyers and other civil attorneys who have subpoenaed, and received, personal driving records from the agency that oversees the regional e-toll system.  Click here for more.

Undue Influence and Duress as Elements of Pre-Nuptial Agreement Enforcement

A couple had executed a premarital agreement giving Husband all his business property.  Eleven years later Husband executed a document transferring to Wife as her separate property 20% of the stock in his business and the family home.  The couple separated a few months later and Husband soon thereafter filed for divorce.  The trial court found that this document was unenforceable due to undue influence and duress, as Husband had provided evidence that he had signed the transfer document after Wife had screamed at him, struck him, and threatened to divorce him and alienate him from their children if he did not provide her with this security.  The transfer of the property was set aside by the court on the grounds that the transfer was the product of wife's undue influence over husband, and while he was under duress.  Click here to read the opinion.

California Billionaire Must Produce Records in Divorce Dispute – Lower Court Ruling Striking Down Privacy Statute Left Standing

This week the California Supreme Court rejected efforts by billionaire Ronald W. Burkle to keep 1,200 pages of documents involved in his divorce under seal.  He had argued that the need for keeping them from the public was necessary in order to protect his children.  On Wednesday, the California Supreme Court let stand a decision by a lower appeals court that had struck down a law that would have kept the records from public view.  Click here for more.