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December 21, 2012

Technology Intersects with Privacy and Discovery in Divorce Cases

_DSC0835.JPGDiscovery in divorce litigation can be protracted and difficult, as it may involve the parties' efforts to find "dirt" about each other. New technologies have expanded people's ability to communicate, and accordingly, the number of potential sources for incriminating information in a divorce matter. Communications technologies, like email and social media, are an obvious potential source of discovery. New, "smart" technologies, including not only smartphones but other devices that record and communicate data, are also becoming a frequent subject of discovery requests and subpoenas. As these technologies quickly develop, the usefulness of such data in divorce litigation and other legal matters, especially criminal investigations, must be balanced with privacy rights.

One of the newest innovations are "smart meters," used to measure usage of energy in homes and share data with the utility companies, according to an article this month by National Geographic. Devices like these may one day form part of a "smart grid," which may allow utilities and other industries to meet customers' needs efficiently and respond quickly to outages and other problems. The technology is also controversial, as people may not know exactly what data their device is sending, who may see that data, and how the recipient may use that data. Data on daily energy usage, for example, could easily establish when someone is home or away, and hackers could intercept the data and use it to plan burglaries. A less alarmist view is that the data could also be subject to subpoena during a divorce case, adding a whole new dimension to the type of evidence introduced in a court proceeding.

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September 20, 2012

Husband Ordered to Pay Wife's Total Attorney's Fees in California Divorce Case After Refusing to Produce Financial Information

1162216_39371391.jpgWhen a husband appealed of an award of attorney's fees in a divorce case, the California Court of Appeals for the Second District applied the "disentitlement doctrine" and dismissed the appeal outright. The husband's argument on appeal in Marriage of Hofer was that the trial court did not consider evidence of his own financial hardships when it ordered him to pay his wife's attorney's fees. The appellate court ruled that this lack of evidence was entirely due to the husband's own refusal to abide by the trial court's discovery orders.

John Hofer filed a petition for the dissolution of his marriage to Lisa Hofer in January 2009, after about eighteen years of marriage. John derived much of the family's income from several business entities owned by his family, in which he owned some interest. He exclusively managed these assets of the marriage. During the marriage, Lisa was never employed outside the home, so all income of the marriage came from John.

The Superior Court of Ventura County granted their divorce in 2010 after several prolonged discovery battles. At a hearing on Lisa's motion for attorney's fees, the court found that Lisa had incurred nearly $165,000 in attorney's fees, and that John had paid more than $47,000 of that amount for her. John had paid his attorneys more than $300,000. California law requires courts to make reasonable orders ensuring both parties have access to legal representation. Because Lisa had no resources or income of her own, and John had the apparent ability to pay at least $347,000 in attorney's fees, the court ordered John to pay an additional $200,000 towards Lisa's attorney's fees and costs. John appealed this ruling.

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May 3, 2012

Electronic Discovery Helps Find Money Hidden by a Spouse During Divorce

T-Mobile Dash wikiSpouses going through a divorce have hidden assets from one another for as long as marriage and divorce have existed. Of course, not every divorcing spouse does this, but it is in the interest of both a divorcing spouse and a divorce attorney to know how to fight against the concealment of assets. Recent technological developments, such as the increasing use of computers and the internet for financial transactions, and widespread use of social media, offer a number of useful tools. Using the discovery process during divorce litigation to collect digital information, commonly known as electronic discovery or "e-discovery," can help a party to a divorce find the others spouse's misconduct or deception.

The Wall Street Journal cites statistics from the American Academy of Matrimonial Lawyers (AAML) showing that eighty-one percent of the lawyers in that organization reported in 2010 that they had seen a five-year increase in the number of cases that used evidence obtained from social media sites. A year later, ninety-two percent of members reported an increase over a three-year period of evidence obtained from smartphones appearing in divorce cases. Social media and smartphones can provide a wealth of evidence of a spouse's conduct (or misconduct), but they also often play a role in efforts to hide assets.

The intersection of internet and smartphone technology with the age-old practice of hiding assets presents both opportunities and risks for litigants and their attorneys. Hiding or failing to disclose assets in a divorce case could expose a party to contempt or other penalties in some cases, and it could play a role in a judge's final division of the marital estate. A lawyer who helps a client conceal assets could face discipline as well.

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January 18, 2011

California Divorce and Bifurcation

Justia-photo-82 Grammers.jpgReporter Jill Serjeant reports in this published article that Kelsey Grammer's request to be single by the end of this month is opposed. This article raises the question as to how can you get a divorce when you are only in the middle of your divorce proceeding.

The legal procedure is called Bifurcation. As a San Diego Certified Family Law Specialist (Board of Legal Specialization, State Bar of California), I have filed bifurcation motions and opposed bifurcation motions. I think that Camille Grammer has a chance to block Kelsey's attempt to be single by the end of January. But let's go back to the basics:

"Bifurcation" means to divide. In California Family Law it is a court procedure in a family law case whereby the judge separates out one issue from all of the rest and the court generally approves a bifurcation request for two typical reasons. First, that a party to the divorce is getting remarried. And, second, that there is one issue in the case that, if separated from the remainder of the case, and resolved, would assist in the resolution of the remainder of the issues. All bifurcation requests require that the divorce case has satisfied the six month waiting period that is mandated by California law.

In Mr. Grammer's case, Mr. Grammer filed a motion for bifurcation requesting that the court separate out the issue of terminating the marriage so that he will be single and free to marry his woman friend, Kayte Walsh. The Grammers were married for thirteen years however the divorce was filed and served more than six months ago and Kelsey argues that he is entitled under California law to the bifurcation of the marital status. Nearly 100 times out of 100 such requests would be granted in a California divorce court. However Camille Grammer has filed a response in opposition to this motion. I've read the response (you can see it here), and it appears to me that she has done an excellent job in raising significant reasons why the bifurcation should not be granted at this time. Why do I say this?

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January 13, 2011

California Divorce Report: Discovery of Income and Assets

Justia-photo-81 tax return.jpegDivorces in the State of California consist of many different types: Short Term Marriages (marriages of less than ten years); Long Term Marriages (marriages of ten years or more); high income marriages; marriages with a significant community property estate; as well as marriages with or without children; and this is only a short list to describe how individual marital circumstances can be.

The Huffington Post recently published an article written by journalist and tax attorney Julian Block describing the use of a powerful tool to look for income and assets--the tax return. As a San Diego Certified Family Law Specialist I work with tax returns and, in more involved cases, forensic witnesses, expert witnesses, CPAs and private investigators. It has been my experience that there are spouses who don't want any such help by virtue of a firm belief that both spouses have been completely honest about the disclosure of all marital income and property. However, the reasons that have led a spouse to a divorce often involve beliefs of betrayal and dishonesty. The investigation for hidden assets and income may or may not be successful. Dishonest people are either good or bad at dishonesty.

"Discovery" in a legal proceeding is a significantly large and complex legal topic describing how a spouse may demand and access information, data and documents pertaining to the case. Simply put, this process involves Form Interrogatories, Special Interrogatories, Inspection Demands, Depositions and Subpoenas. Mr. Block's article informs that the simple tax return may be the best starting point for the discovery effort. Schedule B contains information as to mutual funds, dividends, interests and financial institutions. Schedule D contains information as to the sale of certain types of assets and this information may lead to additional information as to income or hidden assets.

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October 5, 2010

California Divorce Appeal Granted

Justia-photo-66 Appellate court.jpegThis blog will refer to In Re Marriage of Tharp and the decision of the Court of Appeals of California, Fifth District regarding the appeal filed by the Wife (Mary Beth) which was granted on several points in a decision certified for publication. A published version of this decision may be found here. This is a decision that is must reading for California Certified Family Law Specialist attorneys and students of California Family Law as it provides a model as to how family law cases should be handled at the trial level.

The decision publication that I reviewed was 41 pages. This posting will discuss an isolated issue and hopefully future posting will describe other important points raised in the Appellate case. Briefly, the parties were married for more than ten years ("long term marriage"); they have three minor children; the Husband is a self employed businessman with substantial earnings (not fully described in the decision but reportedly over $100,000 or $150,000 and possibly much more).

The Wife immediately, upon the filing of the divorce petition by Husband, initiated discovery requests requiring Husband to supply documents and information as to income, expenses, property and debt. Wife also filed a request for attorney's fees as she had little or no income and Husband was in control of the marital income. When Husband did not respond to the discovery requests, Wife filed motions to compel discovery by the Husband and repeated her requests for attorney's fees. The trial court initially granted some of Wife's discovery motions; however the award for fees was quite small--in an amount that later was referred to by Wife's attorney as inadequate to allow Wife the same legal representation as Husband enjoyed.

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August 27, 2010

Arquette California Divorce Petition Analysis

Justia-photo-55 P Arquette.jpegAs a La Jolla divorce attorney, I have seen many Petitions for divorce (dissolution of marriage) in the San Diego Superior Court. Many simply glance at the petition document assuming that the document only contains superficial information. I don't agree. This blog will examine the petition for divorce by Patricia Arquette wherein Patricia Arquette is the Petitioner and Thomas Jane is the Respondent.

Brief background: Patricia Arquette was born in 1968 and is 42 years old. She was raised in an actor centric family; commenced her acting career in 1986 and has appeared in many Hollywood movies. She was married to Nicolas Cage for 6 years and has been married to Thomas Jane since 2006.

On August 13, 2010 Patricia Arquette filed for divorce in the Central District Los Angeles Court. She lists one child, age 7. (This blog does not provide names of children.) The child was born three years prior to the marriage. Therefore there is a potential "Marvin" case which the attorneys will consider. (Michelle Marvin sued actor Lee Marvin to establish her common law marital rights as she and Lee were never married.)

She lists some separate property (for example, "jewelry") but states that there are other items which are "not presently known". As to community property Patricia Arquette states that there are such items however they are also "unknown". Some attorneys seek to extensively list all separate property and all community property however I don't see the value of doing this in the Petition. Possibly the "unknown" statement could be attacked as disingenuous. I like to simply state that the items will be listed in the mandatory Preliminary Declaration of Disclosure. The Declaration of Disclosure is mandatory in divorce cases and lists property, debt, income and expenses.

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