Articles Posted in Technology in Family Law

If you have recently retained an attorney to represent you in your divorce proceeding, chances are that you already have or will soon receive what is known as a “litigation hold letter.” Although you will inevitably receive many other letters and forms at the onset of your divorce proceeding, it is important to pay close attention to this particular letter.

Family law attorneys will typically send their clients a litigation hold letter right after the attorney has been retained by the client. These written directives are also known as “preservation letters” or “stop destruction requests.” In anticipation of potential future litigation, a litigation hold letter or notice is essentially written instructions requiring that you preserve all documents and electronically-stored information (“ESI”) which could be relevant evidence. ESI refers to any information that is created, stored or utilized with computer technology. This includes emails, computer and network activity logs, digital recordings, voice mails, web-enabled cell phones and portable devices, internet files, computer drives, disks, CDs, etc.

Generally, the obligation to preserve evidence begins when a party knows, or reasonably should know, that the evidence is relevant to future or current litigation. In other words, the evidence is reasonably calculated to lead to the discovery of admissible evidence, is reasonably likely to be requested during discovery, or is the subject of a current discovery request from the opposing party. Thus, if not already triggered, receipt of the litigation hold letter will trigger the duty to preserve relevant evidence.The scope of the hold depends on the specific facts of the case and what is likely to be at issue in future litigation. Typically, the hold will apply to all sources of data including emails, calendar entries, cell phones, accounting software, hard drives, thumb drives, contacts and task lists. Most documents today are in digital form, which is why preservation of ESI is particularly important. This does not mean that you have to save every single email or scrap of paper, but you should suspend routine destruction of documents and ESI as it relates to relevant evidence that might be useful to your opposing party. Even if your hard drive or phone breaks, for example, you need to refrain from disposing of it until your attorney says it’s okay.

If you have any questions before you delete anything or throw something away, you should speak with your attorney because there are severe penalties for what the court deems to be the destruction of evidence. You may be exposed to possible liability and sanctions. For instance, the Court may prohibit you from presenting certain evidence yourself, the court may decide issues without any input from you or the court may even make you pay for the recreation of the lost or damaged electronically stored information.
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According to CNN, Cara Cox was reunited with her mother, Jodie Borchert, 4 years after vanishing from Florida with her father, Aaron Cox, against child custody orders. Cara Cox was just 8 years old at the time when she was taken by her father following a weekend visit. For nearly 4 years there were no leads on Cara’s whereabouts. However, a break in the case came on May 12, 2014 when a tip led authorities to a remote area in Mexico, 1,700 miles away, where both Cara and her father were living under aliases. Authorities arrested Aaron Cox and recovered Cara. For Cara’s mother, the wait was finally over.

For some divorcing couples, the fear of your spouse abducting your child in violation of your child custody orders is a serious concern. If you are going through a divorce or have recently divorced, there are some precautions that you can take. First, it is important to keep a record of important information about your ex-spouse including his/her social security number, driver’s license number, vehicle description and license plate number, physical description, etc. Second, it is important to keep a record of important information about your child including his/her height, weight, hair color, eye color, fingerprints, and any unique physical characteristics. Third, it is recommended that you keep an updated list of addresses and telephone numbers of your ex-spouse’s relatives and friends both here and abroad. Lastly, you should take photographs of your child every six months because a recent photo may prove very helpful if your child is abducted by your ex-spouse. Also, as much as you may not want to keep any pictures of your ex-spouse around, keep a recent photo of him/her on hand as well for the same reason.

There are many great smart phone apps to help you keep your child’s information handy, such as The FBI Child ID. Created by the Federal Bureau of Investigation, this app lets parents store their children’s photos plus other identification (height, weight, hair and eye color, age) for quick access if a child ever goes missing. The information is stored on the iPhone only until parents need to send it to authorities. Notable features include safety tips, checklists for what to do if something happens to your child, and shortcuts to dial 911 or the National Center for Missing and Exploited Children. Parents also have the ability to email info immediately to law enforcement agencies if the unthinkable occurs. (Free; iPhone, iPad)Another great smart phone app is Find My Kids. Using GPS in real time, this app helps you keep track of and automatically locate where your child goes with his phone. If he’s traveling alone, you can confirm that he arrived at a specific destination, or if he’s meeting up with friends, they can confirm each other’s locations. Location info is never shared with anyone else beyond those who have permission to see it, and data is saved for later review. Even though the app is free, parents will need to purchase a subscription for the tracking feature. (Free to download, service requires a monthly fee; iPhone, iPad)

If your child has been abducted you will likely experience a tremendous amount of shock and emotions and won’t be able to think clearly. Thus, it is important that you take the above precautions so that you are prepared for this awful situation.

If you think that your child is at risk of being abducted by your ex-spouse then is it vital that you have a very clear child custody order that outlines the extent to which your ex-spouse has authority to travel with your child. You should keep a copy of the current order in a safe and easily accessible place. Although court orders are not typically recognized in foreign countries, the Hague Convention is an international treaty that provides a method of returning a child who has been abducted by a parent (in violation of custody and visitation orders) from one country that is a member of the Hague Convention to another country that is a member of the Hague Convention.
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During a divorce, a judge, a mediator or the parties will make decisions regarding how to divide the marital property, like the residence, the vehicle, savings accounts, and stocks accounts. But what about the couple’s digital assets, like their iTunes music library, MP3s, Kindle eBooks library, etc.? These assets aren’t exactly tangible, yet they may still be considered martial property subject to division during a divorce.

Digital assets are comprised of intangible goods such as digital books, music and movies. These are most typically stored in iTunes accounts or other MP3 storage accounts and Kindle eBook accounts. Digital assets can even include digital storage, social media accounts and blogs. These digital assets raise the question of whether they are subject to division during a divorce and whether or not they can be valued.

Although there is not much law on this subject, when it comes to the division of digital assets, many states will divide the digital assets using an “equitable distribution” system to divide, allocate and value these assets. The “marital property” will be assigned a value and then it will be distributed equitably, or fairly, between the spouses. Such division does not always result in a 50/50 split, but rather it is what is considered a fair split.However, just like a car cannot be split in half, neither can many digital assets. Additionally, unlike the ownership of a car which can typically be transferred quite easily to the other spouse, transferring ownership of digital assets is not always feasible. In fact, some user agreements do not even allow for transferring ownership. A judge’s ruling will not even supersede these user agreements. To resolve the issues that division of digital assets pose, the spouse who owns the iTunes and Kindle libraries may be awarded them, while the other spouse may be awarded a different asset in leui. Another option is for the spouse who is awarded the asset to “buy-out” the other spouse based on the value of the asset awarded to him/her.

Although the division of digital assets is a relatively new area of the law, as more digital products continue to develop, I suspect that divorce attorneys will see a lot more issues involving digital assets and thus a lot more law on the topic.
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In this day in age, social media seems to run our lives. We wake up in the morning and check our Facebook account. We upload a photo of our breakfast to Instagram. And we tweet about how our day at work is going. Social media sites like Facebook, Instagram and Twitter seem to dictate how we run our lives. Accessing these social media sites is as easy as a click of a button on your smartphone. Well it turns out that social media is not only running our lives, but also playing a part in both ruining our marriages and helping our divorces.

Divorce attorneys commonly note that irreconcilable differences are the reason for the divorce. Research has shown that these commonly used digital communications may be the culprit of the “irreconcilable differences” that develop between spouses. Social media websites are so easily accessible and so often used that they not only help create relationships but they also play a role in destroying relationships. For instance, due to the anonymity on some of the sites and the often encouraged non face-to-face contact, people seem to be more susceptible to temptations. Old flames tend to resurface or new flames are more likely to continue because retrieving contact information is so easy and opens the door to further communication. Social media sites also often times open the door to arguments because things posted by one spouse are misinterpreted by the other spouse. A harmless remark by one spouse may cause the other spouse to have major suspicions begin stirring. In essence, these social media sites are the culprit in facilitating emotional and physical affairs among married people.However, after a relationship ends and a divorce begins, social media may play a big role in helping your divorce litigation. Many San Diego divorce attorneys note that their clients are closely monitoring the social media sites of their soon to be ex-spouse. Not only are they reading what their soon to be ex-spouse has to say or photos he/she has to post, but they are taking screen shots of the social media page and downloading photos the spouse has uploaded onto the site. Spouses are noting down anything and everything that might impact their divorce proceeding, especially with regard to child custody determinations and hidden assets. Thus, spouses should be conscientious of what they post while participating in social media during divorce litigation.
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In today’s day in age, most of us are guilty of being hooked on technology. If you’re going to spend a significant portion of your day on your technology devices, then why not use that technology to your advantage when going through or after a divorce. Both during and after a divorce, problems often arise between spouses when there is co-parenting involved. However, there are several apps that you can download on your smart phone or iPad to help make co-parenting with your ex-spouse easier.

2houses: This app makes co-parenting easier by offering digital tools to allow both parents to easily communicate and make arrangements with regards to their children. The app offers everything from school to activities to medical issues. Both parents are able to view a joint calendar. There are also tools to help divorced parents sort out who will pay for what related to their children. Expenses can easily be entered and then the app will determine when a balance is achieved based on the input information that the parents put in. The journal on the app also allows both parents to share information about the children. Lastly, the information bank gives both parents access to vital details, such as phone numbers, immunization records, shoe size, etc.

Our Family Wizard: This app includes a calendar, journal, message board, expense log, info bank for safe storage of family information, and a notification center. Parents can utilize this app to share messages, communicate regarding expenses and update your ex-spouse about your child’s appointment, all without having to involve the child as the messenger.Cozi: This is another great app for sharing calendar items, to do lists and contacts with your ex-spouse. For instance, you might want to add contact information for your child’s soccer coach or doctor’s office so that both spouses have quick access to the contact information when he/she has custody of the child. The calendar is also great because it is a shared calendar, meaning if you add your child’s dentist appointment on the calendar it will automatically show up on your ex-spouse’s calendar and you can even send him/her a reminder through the app.

Baby connect: Keeping track of your child’s feedings, diapers, sleep, medicines and activities can be difficult when custody of the child is changing hands between mom and dad. Using this app will help you keep track of all of this.

Skype: Skype is a great way to facilitate “face-to-face” communication via video chat between your child and the other parent when the child is in your custody.

These are just a handful of apps that help to make co-parenting life easier. Utilizing one of these apps has the potential to reduce tension, stress and fighting between the parents by allowing them to communicate without the need for face-to-face contact or using the child as the “messenger.” In turn, both parents will more effectively stay informed about what it going on in their child’s life, even when the child is in the other parent’s custody.
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When you think of sperm donor, you typically think of someone whose involvement in the child’s life doesn’t extend beyond the act of assisting in the child’s conception. This is usually the case for sperm donors as they typically waive all parental rights during the process. However, sperm donor William Moratto recently got pulled into a child support case and a Judge in Topeka, Kansas actually ended up ordering him to pay child support for the child, now 4 years old, that he helped to bring into this world!

Marotta had responded to a Craigslist ad from a couple requesting a “private” sperm donor. The artificial insemination process did not involve a licensed physician but the couple did present Marotta with a sperm donor contract, which Moratto believed was a valid agreement indicating his intention to cease any parental role following the donation. Little did Marotta know that his donation would later cause him be on the hook for thousands of dollars of child support.Marotta argued that he was only a sperm donor and not a “parent” for purposes of barring his liability for child support. Unfortunately, the Judge found that Marotta’s claim of being just a sperm donor was nullified because the state’s statute specifically requires the donation to be made to a licensed physician if the donor wants to be treated as if he were not the birth father. Thus, the Kansas statutory bar to paternity could not be applied to Marotta as a defense against being subject to the rights and responsibilities of parenthood, including potential liability for child support. Would the same hold true in California? Like Kansas law, California Family Code Section 7613 also offers a statutory basis disqualifying a sperm donor from being subject to a child support obligation for the child he helped conceive. The California statute provides that “[t]he donor of semen provided to a licensed physician and surgeon or to a licensed sperm bank for use in assisted reproduction of a woman other than the donor’s spouse is treated in law as if he were not the natural parent of a child thereby conceived, unless otherwise agreed to in a writing signed by the donor and the woman prior to the conception of the child.”

The Court further ruled that Marotta did not properly waive his rights as a parent despite the written agreement that he signed with the couple at the time of the donation. The Court reasoned that a parent cannot terminate parental rights by contract. Rather a termination of parental rights can only occur in one of three ways: 1) adjudication of child in need of care, 2) relinquishment and adoption or 3) a judicial finding that the parent is unfit to act as a parent. For information regarding when a parent in California is able to voluntarily terminate his/her parental rights, please see our webpage titled “Termination of Parental Rights”.
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We have previously blogged about different ways technology can be used to gain an advantage or gather evidence in a dissolution proceeding. However, ex-spouses are now learning how to use the advances in technology to foster cooperation and harmony post-separation. Many divorcing couples would prefer to sever the ties between them completely after their divorce is final. This goal is unattainable for ex-spouses who will continue to share custody of minor children for years after separation. The new trend called “joint custody – at a distance” encourages splitting couples to communicate electronically rather than during “in person” exchanges in order to reduce the emotional tension during a “drop off” or “pick up”.

Many parents have found that they fight and argue less in front of their children if they are able to express their emotions through other outlets. E-mail communication, online calendars and a number of other online resources are all available to conflicting parties who share children. By sharing an online calendar parents can easily coordinate a child-sharing schedule. All of the child’s activities and plans are readily available to view and change without any need for in-person or telephonic communication between the parents.

Our Family Wizard is a common solution for parents in conflict. A judge may order parties to use Our Family Wizard, a program which tracks all communication, expenses, and even sends notices to the parties regarding their obligations. Because the communication between parents can be supervised by the judge and attorneys involved in the case, the parties are incentivized to speak civilly to each other. This form of communication can take away the aggravation and emotional side of child-sharing and ease the tension and stress for the children involved. The program can be purchased for approximately $100 per year.

Another form of technology frequently appearing in custody orders is Skype. Skype is a free program that allows two or more people to have an online video conversation. In cases where both parties cannot easily see a child frequently, the court may order “Skype visitation”. During a Skype visit, a parent can have a video conversation with the child. Skype also permits conversations to be recorded and can ensure that the visiting parent is getting enough video time with the child. Additionally, a parent may be ordered to purchase a cell phone for the child in order to avoid any telephonic communication between the parties. This way, if a parent wishes to speak to his or her child during the child’s scheduled time with the other parent, he or she can reach the child directly.
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We often blog about the advantages of a mediated/negotiated divorce settlement; however, a new company “Wevorce” is taking this concept to a new level. Family law offers unique challenges to divorce attorneys and the court because the disputed issues are extremely personal to the litigants. When the parties are unable to reach agreements, these private disputes are aired in open court in front of judges, staff, and litigants awaiting their turn. The CEO of Wevorce stated that the concept for the company was inspired by her parents and their 15 year divorce battle. Unfortunately, long and painful divorces are not uncommon and can cost the parties thousands in unnecessary legal fees. Wevorce is driven by the philosophy that cooperation is the secret to a quick and semi-painless divorce.

Read more about mediation vs. litigation from the divorce attorneys at the firm

Wevorce claims to use technology to keep the divorce process structured and moving along smoothly. A traditional contested divorce moving through the court system is often broken up by several deadlines, hearings, continuances, and various other roadblocks thrown up by the parties. In addition to using new innovative techniques to settle divorces, Wevorce also focuses on the emotions involved. Most importantly, Wevorce emphasizes the need for both parents to cooperate in the best interest of any minor children. Custody and visitation is a very emotional area of family law and should be negotiated in such a way to safeguard children from the adversarial process.

Wevorce is promoted as a “new spin” on divorce; however, family law attorneys have been attempting to mediate divorce cases for years. Despite the best intentions and efforts of attorneys, in many cases the parties are unwilling to accept a settlement offer to agree to any terms proposed by his or her spouse. These types of litigious cases can cost hundreds of thousands of dollars in legal fees. One of the most enticing elements of the Wevorce concept is the fact that they offer “flat rate” pricing to divorce so that spouses can manage and control the cost of the proceeding.

Wevorce boasts an extremely high success rate in settling cases. This may be due to the fact that only parties in an amicable state of mind have used the company’s services. A spouse full of anger, resentment, and skepticism is unlikely to agree to use a mediation service to resolve his or her divorce. The best divorce attorneys know that by the time spouses reach the point of divorce, they have problems trusting one another and cooperating to the benefit of the other. If the Wevorce method can translate to resolve conflicts in these contentious cases, it may be the new frontier in family law.

www.BickfordLaw.com


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We have previously blogged about different ways technology can be used to gain an advantage or gather evidence in a dissolution proceeding. However, ex-spouses are now learning how to use the advances in technology to foster cooperation and harmony post-separation. Many divorcing couples would prefer to sever the ties between them completely after their divorce is final. This goal is unattainable for ex-spouses who will continue to share custody of minor children for years after separation. The new trend called “joint custody – at a distance” encourages splitting couples to communicate electronically rather than during “in person” exchanges in order to reduce the emotional tension during a “drop off” or “pick up”.Many parents have found that they fight and argue less in front of their children if they are able to express their emotions through other outlets. E-mail communication, online calendars and a number of other online resources are all available to conflicting parties who share children. By sharing an online calendar parents can easily coordinate a child-sharing schedule. All of the child’s activities and plans are readily available to view and change without any need for in-person or telephonic communication between the parents.

Our Family Wizard is a common solution for parents in conflict. A judge may order parties to use Our Family Wizard, a program which tracks all communication, expenses, and even sends notices to the parties regarding their obligations. Because the communication between parents can be supervised by the judge and attorneys involved in the case, the parties are incentivized to speak civilly to each other. This form of communication can take away the aggravation and emotional side of child-sharing and ease the tension and stress for the children involved. The program can be purchased for approximately $100 per year.

Another form of technology frequently appearing in custody orders is Skype. Skype is a free program that allows two or more people to have an online video conversation. In cases where both parties cannot easily see a child frequently, the court may order “Skype visitation”. During a Skype visit, a parent can have a video conversation with the child. Skype also permits conversations to be recorded and can ensure that the visiting parent is getting enough video time with the child. Additionally, a parent may be ordered to purchase a cell phone for the child in order to avoid any telephonic communication between the parties. This way, if a parent wishes to speak to his or her child during the child’s scheduled time with the other parent, he or she can reach the child directly.

As we have previously blogged, technology is playing an important role in San Diego divorces. Often, spouses use social media sites such as Facebook to gather information about their spouse to be used in the dissolution process. However, some spouses are taking the use of technology to a whole new level. Danny Lee Hormann did not simply peruse his wife’s Facebook when he suspected her of cheating. Instead he installed a gamut of spy equipment in the family home, on the family computer, on his wife’s cell phone, and in his wife’s car.

Michele Mathias, Hormann’s wife, became so worried that her husband was spying on her that she and their children searched the family home for recording devices and held whispered conversations on the lawn. Mathis argued that it was not only her family’s privacy that was invaded, but the privacy of every person who sent her a text message or used her computer was compromised as well. The police pursued criminal charges against Hormann for stalking and he was sentenced to thirty days in jail. According to Hormann, when others hear his story they reply that they would have done the same thing.

This type of spying and information gathering results in the collection of more private information in a short period of time than the discovery process may ever be able to gather. However, many lawyers are questioning the legality of this behavior and what information, if any, can actually be used as evidence in a dissolution case. Under the U.S. Constitution, we all have a “reasonable expectation of privacy.” This expectation of privacy is reduced in certain instances such as when a person is in public. Spying spouses have begun to argue that there is no reasonable expectation of privacy in a marriage.