Maryland Family Law

Yet another reason NOT to share passwords

An article on law.com discusses a case in New York in which the spouse was able to use emails from her husband's account as evidence that he was attempting to involuntarily impoverish himself.  It makes a HUGE difference in how evidence is obtained....in this case, the wife logged into his email account, using the password he provided her with, and downloaded the emails.  The key here is that he gave her the password and had apparently never changed it when the relationship went sour.  The result would have been quite different had she stolen the password, possibly subjecting her to criminal prosecution and the evidence not being admissible.  This is an area of the law that is very state-specific and complicated.  Readers are cautioned to check with an experienced attorney before taking any action intercepting electronic information.  With proper planning, this information can be found through proper and legal means such as subpoenas and/or hard drive imaging.

Job Searching For Parents

As layoffs continues and businesses scale back, more and more people are finding themselves out of a job.  Here are some tips in case you are out of work.  Consider filing to modify your support obligation, and do it soon.  Your order cannot be modified retroactively, when you are facing a contempt hearing or have a huge arrearage, it may be too late.  If you are out of work, you need to be doing everything you can to find new employment, even outside of your field.  It is also wise to keep excellent records of contacts made, resumes sent out, and interviews offered, in case the other party claims you are impoverishing yourself.  I have found that many judges are sensitive to this issue and understand the current economic difficulties that people are facing, but be ready to back up your claims.  It is stressful enough when you have a family law issue pending, being out of work makes it even more difficult.  Got any job search tips, please share below!   

Do-it-yourself Investigations

USA Today reported on a trend of more spouses resorting to self-help to collect evidence for a divorce case.  For example, one can purchase GPS trackers for a vehicle, install spyware to monitor what is being typed or viewed on a computer, or install a hidden camera.  Beware, however, as the article is silent on what the consequences may be in taking those actions.  Depending on the circumstances, you may be violating state or federal regarding privacy and electronic communications.  For example, in some states, if your recording includes sound, you may be violating wiretapping prohibitions.  Not only will you not be able to use the evidence in your trial, but you may face criminal penalties as well.  Even in you can legally collect the information, consider whether it would be more credible in your case if a third party collected the evidence.  Before you take any action, be sure to consult with an attorney familiar with the laws of your jurisdiction.  Just because you can buy it, doesn't mean you should use it.

What I've discovered about discovery

I think most of my clients would agree, discovery is the most difficult, time-consuming and aggravating part of divorce litigation.  Discovery, simply put, is the process of gathering information about the other party's case and also sharing information about your own.  There are several tools in this toolbox:  interrogatories (questions to the other party), requests for documents or other tangible items, requests for admission, depositions, and requests for physical/mental examination.  If one party has been pro se (representing him or herself), this is the point when it may be time to get an attorney's help.  And if you do have an attorney, know that arguing and avoiding the discovery will only make it more painful, financially and emotionally.

The rules regarding discovery can be complicated, even for us attorneys.  Even if you learn the Maryland Rules about discovery, there are customs and rules of thumb that can really be gleaned only through experience.  Clients often ask me, do I really have to produce 5 years worth of bank statements (or answer whether I've had sexual relations with someone else).  The answer is, it depends....you need an attorney well-versed in family law to help you figure that out. 

What happens if you ignore discovery requests from the other side?  You could face having to pay the other party's attorney's fees, delay in your case, your evidence not being admitted for the judge to consider, or even having your case dismissed.  So there actually are worse things than having to answer discovery.

Depositions....can you be on your best behavior?

In many family law cases, (and other legal matters as well) a deposition can make or break your case.  Opposing counsel will use the deposition as an opportunity to see how well a witness will present on the stand, and to gain information to use against you as well.  The number one rule is to be honest, it does you no good to get caught in a lie.  I also tell my clients to remain calm and be polite.  It is good practice, because a judge will not put up with rude comments directed towards anyone in the courtroom, and getting upset only makes it more difficult for the judge to understand your side.  When you are being deposed by opposing counsel, it is often best to give short answers, only answering the specific question that was asked.  Don't volunteer information to the other side, your attorney will make sure that the evidence favorable to you gets in the record.  Keep in mind that the opposing counsel may be trying to provoke you into an emotional state to see where your weaknesses are.   Finally, I leave you with an example of a DON'T....don't use profane language or make personal attacks on the other attorney or you may find you subject to fines as in this case reported on the Wall Street Journal Law blog.

Protect your confidentiality

This week, the Wall Street Journal law blog included a post on using your work email for confidential information.  Remember, generally you can rely on your attorney keeping your personal details confidential and privileged.  If you don't take care to guard your privacy, however, you can lose that benefit.  Everyone should keep in mind, your work email is NEVER private, and for that matter, anything you send in an email could find it's way in tomorrow's newspaper.  This also comes up in meetings between attorneys and their clients.  You may want to bring your mother, cousin, or best friend with you for moral support, but you risk losing the benefit of the attorney-client privilege if you bring someone else along.  Food for thought...

Be careful what you post online....

Today, an article on Law.com discusses using evidence from social networking sites such as myspace and facebook as evidence in court.  As I have mentioned in previous posts, such evidence still must be admissible.  As with any piece of evidence, you must consider its relevance, whether there are any hearsay problems and the genuineness of the evidence.   Regarding family law cases, consider what information can be found online about YOU.  While you're thinking about that, what would the other side find if they are able to examine your computer's hard drive???

Expert witnesses

Will your case need an expert witness?  Expert witnesses are used when you need to prove something which involves professional or technical knowledge, and expert witnesses (unlike fact witnesses) can offer an opinion to the court.  For a basic description of expert witnesses, see this article from Slate. For family law cases, there can be many different types of expert witnesses needed.  If custody is in dispute, an expert witness such as a doctor or mental health professional may be needed to evaluate and testify about either parent or the child.  You may need an expert witness to look for and testify about information on your spouse's computer, or to track down hidden assets.  If alimony is an issue, you may need an expert to evaluate and testify as to the spouse's ability to earn an income.  You can also find expert witnesses for handwriting analysis, appraising assets and more.   Last year, I testified as an expert witness in a case, it was an interesting experience to be on the other side of the witness stand!

What if your smoking gun is an email?

Today there was a great article on law.com about the thorny issue of whether and when electronic evidence is admissible in court.  Like any other item of evidence, it must be "admissible" for the court to even consider it.  A few times a month, I have a client come to me claiming to have the email, telephone bill, or even myspace page which "proves" his or her case.  Unfortunately, I have to tell them that we will have to prove that the evidence is authentic, possibly trace the email/web submission, and hopefully find an exception to the hearsay rule that fits the situation.  The hearsay rules can be complicated, even for experienced attorneys.  Nearly all documents are subject to the hearsay rule, but there are many exceptions such as business records.  For example, a letter from your doctor which stated that you have asthma would not be sufficient to prove you have asthma...you would typically also need the doctor to actually testify.  While this article is written for lawyers, I recommend it to anyone who is pro se, or anyone who wants to better understand evidenciary requirements.

Finding "hidden" income

When the opposing party has a W-2 issued from his or her employer, it is fairly straightforward to determine gross income.  When a person is self-employed (an independent contractor, for example), there can be a huge discrepancy in the amount of income claimed and "real income."   For example, see this article in the Washington Post which describes how prevalent tax cheating is.  In the D.C. Metro area, it is not at all unusual for one or both spouses to be self-employed, perhaps even engaged in several different businesses.  Self-employed individuals may be highly-paid consultants, own a franchise retail business, direct sales, or may provide services such as hair stylists, tutors, and child care to provide just a few examples.  If you may be entitled to child support, spousal support/alimony, attorney's fees, or a division of marital property, you will want to be sure that the Court has all the relevant information to make a fair decision.  How do you do this?  First of all, try to gather all the information you can.  Who are the clients/contractors/customers of the business?  What assets are owned by the business?  It can be quite complicated, and you will likely need an attorney.  Depositions and subpoenas may be needed, and you may even need a expert or investigator to decipher the information and possibly testify.