Georgia Family Law Blog

Web Histories Playing Larger Role in Divorce Proceedings

Lipstick on the collar? One too many late nights at the office? Internet browsing histories?

Divorce lawyers are seeing an increase in the number of cases that cite Web logs as evidence, according to the American Academy of Matrimonial Lawyers.

About 79-percent of divorce attorneys polled by the Academy reported an increase in the number of cases using Internet browsing histories during divorce proceedings in the past five years, while 44-percent cited an increase in the use of spyware to gather evidence.

"Many spouses will use the Internet in order to act anonymously, but in many ways it's the most public thing someone can do," James Hennenhoefer, president of the AAML, said in a statement. "Internet activity can provide valuable glimpses into the kinds of hidden activities that a husband or wife might be trying to conceal and spyware programs can help to make this kind of monitoring extremely easy to conduct."

Evidently, typing things like "how to cheat without getting caught" into Google, signing yourself up for a marriedbutlooking.com account, or writing up one too many "casual encounters" posts on Craigslist is not advisable if you'd prefer to emerge from divorce court with your bank account intact.

Think about that when you're taking advantage of the open bar at your friends' weddings this summer. Forget the blenders and the Williams Sonoma gift cards. It's all about the tracking software. Ah, romance.

SOURCE: AppScout

Angry wife tries divorce-by-YouTube tactic

A New York woman involved in a divorce battle has taken to the popular video sharing site YouTube to spill secrets about her husband, his family, and even their intimate life.

Tricia Walsh-Smith lashes out at her husband, Broadway executive Philip Smith, in a teary and furious clip that's already netted nearly 150,000 hits.

Walsh-Smith goes through their wedding album on camera, accuses her husband of trying to evict her out of their apartment, and even makes embarrassing claims about their intimate life.

Her lawyer says she acted out of passion and is a "victim who is holding her head up," though he wasn't representing her when she made the video.

Her husband's lawyers say they're "kind of appalled."

Other divorce experts worry this could spell bad news for Walsh-Smith. They say the clip probably won't help her in front of a judge.

SOURCE: WLOS.com

SEE THE YOUTUBE VIDEO HERE

Updated report from MSNBC.com:

We're the YouTube Generation, living in the YouTube Era, in a YouTube World. And now we apparently have a YouTube Divorce.

Some prominent New York divorce lawyers couldn't think of another case where a spouse — in this instance, the wife of a major Broadway theater operator — had taken to YouTube to spill the secrets of a marriage in an apparent effort to gain leverage and humiliate the other side.

"This is absolutely a new step, and I think it's scary," said Bonnie Rabin, a divorce lawyer who has handled high-profile cases. "People used to worry about getting on Page Six (the gossip page of the New York Post.) But this? It brings the concept of humiliation to a whole new level."

In a tearful and furious YouTube video with close to 150,000 hits to date, former actress and playwright ("Bonkers") Tricia Walsh-Smith lashes out against her husband, Philip Smith, president of the Shubert Organization, the largest theater owner on Broadway.

She goes through their wedding album on camera, describing family members as "bad" or "evil" or "nasty," and talks about how her husband is allegedly trying to evict her from their luxury apartment. She also makes embarrassing claims regarding their intimate life, and then calls his office on camera to repeat those claims to a stunned assistant.

Famed divorce attorney Raoul Felder, called for comment on the video, termed the whole thing "funny, but there's also sadness. This is a victim who is holding her head up. I think she comes off well."

Then again, Felder allowed that he is now representing Walsh-Smith — though he wasn't when she made the YouTube video.

As for Smith, his office said he had no comment and his lawyers said they didn't, either — "other than that we're kind of appalled."

"I don't think it's the kind of thing people should be doing, and it's the kind of thing judges frown upon," said Norman Sheresky, a partner in the matrimonial law firm Sheresky Aronson Mayesfsky & Sloan, which Walsh-Smith mentions in her video. Asked if he had ever seen a spouse use YouTube to fire a salvo in a divorce battle, Sherefsky replied, "Jamais de la vie." (Translation: Never.)

Felder explained that his client was "acting out of passion." He also called the prenuptial agreement she'd signed with her husband, who is a quarter-century older than her, "stupid."

So why did his client sign? "Why do women sign these things? Love is blind, and sometimes it is deaf and dumb, too," Felder said. The video, he added, was the act of a powerless person, and "revolutions are made by powerless people."

Does that mean divorce-by-YouTube is a true revolution? Rabin, the matrimonial lawyer, sure hopes not.

For one thing, she says, this could come back to haunt Walsh-Smith. "Judges make decisions partly on (a person's) judgment," she says. "She could hurt herself with this." Not to mention the threat of a defamation case from the other side.

More broadly, she asks, where does it end? "Over the last few years we've had to deal with emails getting into the press, emails that nobody thought would end up as Exhibit A. But throwing your secrets onto YouTube for the whole world to see — and comment on! That brings it to a whole new level."

Or, in Felder's words: "There's no such thing as a private life anymore."

SOURCE: MSNBC.com in an AP story by Jocelyn Noveck

Is Work Or A Divorce Keeping You From Your Child?

I have posted previously on software and other tools to help parents and children of dvorce keep up with schedules and improve communication. This is a similar product which deserves a look:

For parents burdened by a divorce or a heavy workload, it is becoming increasingly difficult to stay in touch with their children and each other. Visitation rights might decree that a parent only gets to see a child every other weekend, or perhaps the parent returns home from the office so late each night that their kids are already asleep. Additionally, children themselves are becoming busier and busier - extra academic studies after school, practice with the sports team - which further reduces the contact between parent and child. Whatever the reasons, a communication chasm is appearing between many parents and their children.

Community advocate and business owner Sheila Butler found that - like the parents in many of the other 40 million other 'broken' families across America - daily communication with her spouse about their children became next to impossible following her divorce two years ago.

"There were times when communication with my ex was difficult at best," recalls Sheila. "The question I kept asking myself was 'How are we both ever going to keep up with what's going on in our kids' lives?' but there was no solution available."

With necessity so often being the mother of invention, this mother of two set out to find her own solution, and in so doing developed the 'Kids in Motion Planner' (www.kidsinmotionplanner.com) to help her - and the millions like her - stay in touch with their current or ex-spouses concerning the kids.

Sheila offers parents the following tips:

1. Keep an ongoing involvement in your children's lives.

2. Try and have a window of information into your kids' everyday schedules and developments.

3. Keep an open line of communication, not just between the child and parent, but also the two parents themselves.

4. Give your kids an added 'security blanket' by letting them see that Mom and Dad are cooperating and interested in their development.

5. Enhance the safety nets - parents must stay in contact regarding important changes in their child's life; such as a change in medication.

6. Give children a sense of purpose. Knowing that there are expectations on their parents as well as themselves gives kids purpose and an increased feeling of success when objectives were reached.

Since developing the 'Kids in Motion Planner' (www.kidsinmotionplanner.com) Sheila has become even closer with her 9 year old daughter, and keeps up to date better than ever before with her 20 year old son, who is constantly traveling with the military.

"From my own experience and from the feedback I've received from others, the 'Kids in Motion Planner' has proven to be a highly successful tool for families," she says, "and I mean the whole family - to our knowledge this is the first time anyone has involved the child in the issue of divorce and shared custody in a positive manner."

Although being a divorced or overworked parent is never easy for a family, a little extra communication between parents and their children, and with some simple organizational tools, all families can enjoy closer, more loving, and healthy relationships, no matter what life throws at them.

SOURCE: NewsBlaze and KidsInMotionPlanner.com

A YouTube video on the product, as featured on Atlanta & Company appears below:

Related Posts:

Shared Parenting Custody Calendar Software

Think outside the box for parent-child communications

Virtual Visitation: Webcams and Weekly Visits

Safe Internet use | For those divorcing

Jeanne Hannah of the Updates in Michigan Family Law Blog has posted a wonderful list of tips for something many people fail to consider when they are researching online for information about a divorce and their spouse has access to the same computer:

Whether you are researching the Internet while doing pre-divorce planning, in a relationship with an abuser, or discussing divorce strategy with your lawyer or a friend, you need to take precautions or avoid exposing your plans and strategies to your spouse or abuser. Otherwise, you risk danger of injury by an abuser or interference with the settlement of custody, parenting time, or property issues.

One of the first things I ask a new client is: "Does your spouse know your email account password?"

The communications you have with your divorce lawyer are intended to be confidential. This is particularly important when you and your lawyer are doing strategic planning. And nowadyas, client-lawyer communications often occur via email, as they do with my practice when my clients live far from my office.

The following are some tips for using email and the Internet safely and securely, while preventing your spouse from reading your email or seeing what informational websites you access online:

This page includes general information on internet security, such as:

    * An overview of internet security
    * Safety when using email
          o Can my abuser access my email account?
          o What steps should I take even if I think my abuser does not have access to my email account?
          o What if I think my abuser can access to my email account?
          o How do I know I am sending email from my account when I click on a link?
          o What if I receive threatening or harassing emails?
    * Safety when browsing the internet
          o Can an abuser see what websites I have visited?
          o How do I remove files from my history and cache?
          o How do I remove items from my temp files?
          o What about cookies?
          o How do I turn off AutoComplete?

Jeanne Hannah of the Updates in Michigan Family Law Blog has posted a wonderful list of tips for something many people fail to consider when they are researching online for information about a divorce and their spouse has access to the same computer:

Whether you are researching the Internet while doing pre-divorce planning, in a relationship with an abuser, or discussing divorce strategy with your lawyer or a friend, you need to take precautions or avoid exposing your plans and strategies to your spouse or abuser. Otherwise, you risk danger of injury by an abuser or interference with the settlement of custody, parenting time, or property issues.

One of the first things I ask a new client is: "Does your spouse know your email account password?"

The communications you have with your divorce lawyer are intended to be confidential. This is particularly important when you and your lawyer are doing strategic planning. And nowadyas, client-lawyer communications often occur via email, as they do with my practice when my clients live far from my office.

The following are some tips for using email and the Internet safely and securely, while preventing your spouse from reading your email or seeing what informational websites you access online:

This page includes general information on internet security, such as:

    * An overview of internet security
    * Safety when using email
          o Can my abuser access my email account?
          o What steps should I take even if I think my abuser does not have access to my email account?
          o What if I think my abuser can access to my email account?
          o How do I know I am sending email from my account when I click on a link?
          o What if I receive threatening or harassing emails?
    * Safety when browsing the internet
          o Can an abuser see what websites I have visited?
          o How do I remove files from my history and cache?
          o How do I remove items from my temp files?
          o What about cookies?
          o How do I turn off AutoComplete?

Facebook and flirting: the dangers of divorce

Social networking sites, such as Facebook, Bebo and MySpace, are the latest phenomenon with millions of people enjoying catching up with old friends or making new ones. But lawyers are already predicting that the sites will be the next tool to be used in divorce proceedings and that the first 'Facebook divorce' is not far away.

Currently, over 13.7 million people in the UK use these sites regularly. Many who enjoy flirtatious emails and conversations with people, who are not their partners, are often lulled into a false sense of security that they are not doing anything wrong because they are only flirting electronically, and they don't consider it to be as harmful as flirting in real life.

But even if a physical relationship hasn't occurred, these emails can be used in divorce proceedings and although the person on Facebook may have thought them to be harmless, the aggrieved party can use saucy messages in a divorce court to prove unreasonable behaviour.

Antonia Love, head of family law and partner at Farleys, says, "It is probable that electronic evidence will not lead to a huge rise in divorce figures but it may certainly make a lawyer's job easier as people are a lot less careful about what they write in emails than what they write down on paper."

In the US a new survey by the American Academy of Matrimonial Lawyers has found that there has been an 88 per cent increase in the number of divorce cases using electronic data as evidence.

In the small print of most of the biggest social networking sites it states that, in some cases, if legal standards are met, user information can be passed on to law enforcement agencies and legal teams involved in civil disputes, divorces and employment actions.

In a recent case involving social networking sites a man, from Newport Pagnell, who had been ordered by magistrates not to contact his estranged wife, was jailed for ten days when he joined Facebook and an automatic "friend request" was sent to all the people on his email contact list, including his ex-wife.

A spokesman for Relate, the counselling service, in the UK said that because social networking sites are a new phenomenon it's too early to judge whether they are a problem. But computer companies are already preparing to cash in by bringing out software which a suspicious husband or wife can load on to a computer so that they can spy on all email sent to and from their spouse.

SOURCE: MSN Money in an article by Jane Bell

Related Posts:

Law evolving as divorces drag in digital evidence

Is a virtual affair real-world infidelity?

High-Tech Evidence: A Lawyer's Friend or Foe?

Tell-All PCs and Phones Transforming Divorce

Beyond Googling

Social Networking Sites are a Treasure Trove Of Information

In a divorce, your electronic musings can end up in front of the judge

Nation's Top Divorce Lawyers Note Dramatic Rise in Electronic Evidence

Law evolving as divorces drag in digital evidence

I was interviewed on this topic by Atlanta Journal and Constitution reporter Bill Torpy last week and the article appeared in the paper on Sunday, February 24, 2008, in the Living section and online today. It is reprinted below:

Marietta divorce attorney Stephen Worrall increasingly sees clients come to his office and excitedly tell him: "You won't believe what I found on my wife's e-mail."

The information may be evidentiary dynamite — juicy, sordid and damning. But the veteran attorney immediately will halt the budding sleuth mid-sentence. "We stop them right there and determine how he came about it," he said.

The client may have committed a crime, and Worrall doesn't want to be a party to it.

Evidence like e-mails, cellphone records, Web site records and even GPS information is increasingly making its way into divorce battles, plotting almost indefensible maps of a cheating spouse's footprints.

Electronic evidence has changed the face of divorce. A poll conducted by the American Academy of Matrimonial Lawyers released this month found that 88 percent of its members surveyed had seen a "dramatic increase" in such evidence.

John Mayoue, an Atlanta divorce attorney and author of "Southern Divorce" and "Protecting Your Assets From a Georgia Divorce," said the increase in the use of electronic evidence "has been exponential. It's raging. It's also the most raging issue" in divorce law.

"The day of the private eye peering into a window is mostly gone," he said. "This electronic information is so much better. It's the most compelling evidence in terms of financial wrongdoing, in terms of affairs — someone in their own words saying things they'd never say in court. 'Hey, I'm worth $1 million. Hey, I'm having an affair.' People are more likely to be caught than ever before."

The evidence can be devastating. In a recent case, the wife, who was thought to be cheating, was asked to turn over a cellphone. "She forgot she had photos [of her and her lover] saved," Mayoue said. "They were photos that said they were more than just friends."

But, Mayoue adds, "the vexing issue is that of privacy. How was that evidence retrieved?"

A spouse spurned will stop at virtually nothing to prove a partner has been up to no good. They place keystroke spyware to see what has been typed on a computer. They sneak off with BlackBerries or laptops to get a forensic expert to retrieve information that has been deleted. They steal passwords. They even slap global positioning system, or GPS, devices on vehicles to see where their spouses have gone.

Worrall had one case in which both parties wanted examinations of each other's computer. "Both had Match.com entries on their computers," he said, referring to the online dating service.

Judges are frequently asked by parties in a divorce for court orders allowing them to examine a spouse's computer or retrieve cellphone records. They are also often asked to rule on the admissibility of evidence that has already been retrieved.

Fulton County Superior Court Judge Cynthia Wright, chief of the Family Court Division, said such evidence can be powerful.

"Cellphone records can show they were in Alabama when they said they were in Marietta," she said. "As our technology expands, the ability to track people expands."

Legal bounds still murky

The law has been trying to keep up with technology, said Wright, who sees e-mail evidence in almost all contested divorces. "It's an area of law that attorneys are struggling with. It's a difficult area of law. It's evolving just as technology is evolving."

Georgia law has provisions prohibiting computer theft, trespass and invasion of privacy. But each case has gray areas. Was it a personal laptop? (Most likely not OK to use as evidence.) Or was it a family communal computer? (Probably OK as evidence.) Did the spouse ever share the password? (If so, probably usable.)

"Generally, if the devices are not normally accessible to the person who has 'broken' into them, i.e. password protected, or are not owned by the person who is seeking to use the data, I have ruled out such evidence," Gwinnett County Superior Court Judge Billy Ray said in an e-mail. "If it is not your device, or if you are not a person who has access to it on a normal basis, my rulings have been that you can't use it."

"I have seen GPS tracking devices used," Ray said. "Normally, it is when one spouse also has ownership of the car. It is hard to say they can't do it if it is their car, too. Kind of like breaking down your own front door; if it is your door, you can do with it as you please."

Mayoue said the appeals courts haven't dealt with a lot of the questions yet.

"The courts are slow to deal with these issues," he said. "People haven't pushed these cases [through the legal system]. They've tended to settle."

Damning evidence

Electronic evidence helps settle cases quicker because it is so graphic and damning, said George Stern, an Atlanta lawyer practicing divorce law for 30 years and former president of the American Academy of Matrimonial Lawyers.

Pornography on the computer — thought to be deleted — is a killer in divorce cases, he said, as are e-mails and cellphone calls to lovers.

"You'd be shocked how often a person will call their girlfriend or boyfriend," he said. "I think husbands are much more careless than wives."

Why would people sneaking around not cover their tracks? Stern thinks the use of e-mail and cellphones is so routine that people just don't think about it.

"People get lazy," Stern said. "And, for the lack of a better word, stupid."

Wright said the omnipresence of technology might be an impetus for people to behave.

"The world has gotten smaller with the World Wide Web and computers," she said. Her advice? "Live your life like you're living in a small town."

SOURCE: AJC.com in an article by Bill Torpy

Related Posts:

Nation's Top Divorce Lawyers Note Dramatic Rise in Electronic Evidence

COMPUTER TRESPASSING WHAT YOU SHOULD KNOW?

Illegal Electronic Surveillance in Divorce Cases

Tell-All PCs and Phones Transforming Divorce

High-Tech Evidence: A Lawyer's Friend or Foe?

BE CAREFUL WHAT YOU SAY: EMAILS, TEXT MESSAGES, VOICEMAILS AND MORE...

Online game causes divorce!

  Mobile, Alabama, family law and divorce attorney Michael Sherman of the Alabama Family Law Blog has posted an interesting article today, republished below.

World of Warcraft is a best-selling online role-playing game.  It boasts over ten million subscribers; however it has apparently also left an increasing number of real life casualties in its wake, including a woman named Jocelyn.

Though she is not a player, the 28-year-old California native has divorced her husband of six years due to his development of what she describes as a "crippling addiction" to the game.

She claimed that shortly after he would come home from work at 6:00 p.m., he would begin playing until 3:00 a.m. She said that he was even worse on the weekends, when he would play from the morning until the middle of the night.

“I ceased to exist in his life,” she said.

Jocelyn and her ex-husband Peter had been friends since age 13. However, nine months was all it took for the marriage to fall apart.

She said she purchased the game as a Christmas present for him in 2004, when it first came out. They had their first serious discussion about the direction of the marriage in May of 2005. She moved out of the house by September 2005.

She also said her ex-husband failed to perform his domestic duties as well. She says that he was no longer paying his bills, nor doing his part of the housework.

She doesn’t hesitate to say that the game was the main reason the divorce took place and is still emotional about the impact it had on the marriage. She was upset that her husband would ruin his life and his marriage for “a fantasy land.”

This story was originally told at Yahoo Games and can be found here and below.  Though it only includes one side of the story, if true, it is sad that a video game could cause the break up of a marriage.  It reminds me of the title of a good book, Amusing Ourselves to Death.  Or, in this case Amusing Ourselves to Divorce.

SOURCE FOR POST: Alabama Family Law Blog

Related Post: Is a virtual affair real-world infidelity?   

Nation's Top Divorce Lawyers Note Dramatic Rise in Electronic Evidence

E-mails are Primary Source with Wives Most Likely to Use Them

A resounding 88% of the nation's top divorce attorneys say they have seen an increase in the number of cases using electronic data as evidence during the past five years, according to a recent survey of the American Academy of Matrimonial Lawyers (AAML). E-mail takes the lead as the most commonly used form of technological evidence, with 82% citing it as the main source. Interestingly, the survey also reveals that wives are more likely to make use of electronic evidence than husbands.

"As in all other areas of our lives, technology is having a big impact on the way that divorces are now conducted," said James Hennenhoefer, president of the AAML. "Many people still don't realize how much evidence can be gleaned from personal electronics ranging from computers to cell phones and GPS devices. In the Internet age, there is often a very clear trail that has been left behind and can be easily traced."

In all, 82% of the AAML members who responded said that e-mail has become the most common form of electronic evidence during the past five years. Text/instant messaging and Internet browsing history tie for second with 7% each, while 1% of the respondents cite data taken from GPS systems.

A gender difference also emerged between which spouse uses electronic evidence more often in divorce cases. In all, 27% of the members said that wives use electronic data more often during a divorce case while only 5% said husbands did.

SOURCE: PRNewswire.com

In a divorce, your electronic musings can end up in front of the judge

I have posted previously about the potential perils of some of our modern forms of communications. Robert Kisselburgh of the Mississippi Family Law Blog has the following post today on issues which can arise out of emails or other electronic communications:

For some reason, many people believe there is some anonymity when they send an e-mail or post something online. It is amazing what people will put in an e-mail or post on a MySpace or Facebook page. Some of the most damaging evidence I have used in trial were e-mails. For some odd reason people will say things in e-mails they would never say in public. What is bad about e-mails and online postings is that those words are there for others to read. This is especially true in divorce and child custody cases. You can expect that someone will look at your e-mails and your postings to see what you are telling others.

This was confirmed by a recent article in the National Law Journal which stated, "Armed with printouts from site such as Facebook and MySpace, attorneys have used pictures, comments, and connections from these sites as powerful evidence in the courtroom." Listen up--your online postings are not private. They can become evidence either to prove you are doing something you should not be doing or used to attack your credibility when you have denied something.

SOURCE: Mississippi Family Law Blog

Think outside the box for parent-child communications

As our society becomes ever more mobile, parents can have a tough time when it comes to staying abreast of their children’s daily lives. While these solutions are pretty ‘Version 1.0? for today’s teens, they can work great for parents. (When did teenagers stop using email?)

• Basecamp (http://www.basecamphq.com/) is an online project-management system. Although designed for businesses, it’s a great way for parents and kids to communicate, share pictures, schedules, and more. If you can keep all of your stuff within one project, you can’t beat the price: free.
• Flickr (http://www.flickr.com/) is the well-known online photo-hosting service. Remember, parents, it doesn’t have to be only pictures of your kids’ activities. Take pictures of your own activities to share them with your kids. Again, you can’t beat the price: free.
• Live Journal (http://www.livejournal.com/) is an online journaling system, and you can set it up so that entries are visible to anyone, just your friends, or only you. Not only can this service give you a place to write down your thoughts (just remember to set those to private!), but you can compose messages to your kids and engage in dialog with them. Once again, it’s free.
• Campfire (http://www.campfirenow.com/) is an online instant-messaging system that works via the Web, so no worries about who has Yahoo!, MS Messenger, AOL Instant Messenger, and so on. As long as the total number of chatters is four or fewer, it’s (surprise!) free.

While nothing is better than in-person communications, followed closely by a telephone call, the advantage of these options (except for Campfire) is that you can do them while your kids aren’t available by phone (in school, sleeping, etc.). When your kids get  home or wake up, they can check to see what you’ve left for them.

These options are not the only ones out there, and may not even be the best options. Hopefully they will inspire you to find more ways to keep in touch with your kids, even if they just live across town.

Sources for Post: Indiana Family Law and Divorce Help Network

Social Networking Sites are a Treasure Trove Of Information

There is a very interesting article in this week’s National Law Journal, posted below, that discusses the increasing use that many lawyers are making of social networking sites such as MySpace and Facebook as sources of information about their clients and adversaries. The takeaway is, be very, very careful about what you post online, and what you let others post to your site. If you think you might be embarrassed or have a difficult time explaining it in court, don’t let it see the light of day. Read the NLJ article in its entirety below the fold:

SOURCE: National Law Journal

SOURCE FOR POST: Pennsylvania Family Law Blog

Shared Parenting Custody Calendar Software

Using a shared parenting custody calendar can help you keep track of everything important in your children's lives, including the visitation schedule and how the custody arrangement is working.  One of the easiest ways to do this is by using child custody and visitation software, such as the Custody Toolbox.

What Is The Custody Toolbox?

The custody toolbox is a child custody software program for your computer to help you keep track of everything relating to your children.  You can use it to:

Beyond Googling

Check out Beyond googling: More and more, lawyers are using social networking sites as litigation tools (see below) at Indiana Law Blog. We routinely Google. Guess it's time to get with the times and add Facebook and MySpace.

SOURCES FOR POST: Divorce Law Journal and Indiana Law Blog

Tell-All PCs and Phones Transforming Divorce

Fellow blogger Diana Skaggs, of the Divorce Law Journal blog, alerted me to an article from this weekend's New York Times, which appears below:

A word of extreme caution is in order here. I have published articles here and here and here previously about how many of the techniques mentioned in this article violate state and federal criminal laws.

Criminal Lawyers Use Them : Why Not Divorce Lawyers?

The following article is by ANEMONA HARTOCOLLIS and the New York Times:

It was a Perry Mason moment in the trial of Paul Cortez, an actor and yoga teacher who was ultimately convicted of killing his former girlfriend Catherine Woods, a dancer who was working as a stripper.

After weeks of testimony and a parade of witnesses, the case against Mr. Cortez boiled down to this: a bloody fingerprint and data collected from a cellphone.

A record from a T-Mobile cellphone transmission tower on the day Ms. Woods was murdered showed that Mr. Cortez called her 13 times in the hour and a half before her death, and then never again. He had told the police in a written statement that he made the calls from his home.

But as he called, the record showed his cell signal hitting a tower on East 105th Street, near his apartment, and gradually shifting to towers on East 86th and East 84th Streets, near Ms. Woods’s apartment. At trial, when the prosecutor questioned him about the discrepancy, Mr. Cortez changed course, saying he had made some of the calls from a Starbucks.

Examining cellphone data is a technique that has moved from being a masterful surprise in trials to being a standard tool in the investigative arsenal of the police and prosecutors, with records routinely provided by cellphone companies in response to subpoenas. Its use in prosecutions is often challenged, for privacy reasons and for technical reasons, especially when the data comes during the morning or evening rush, when circuits are crowded and calls can be redirected to other towers. But it is often allowed and is used by both prosecutors and defense attorneys to buttress their cases.

“It’s one of the most important developments in technology in the courtroom in the last five years,” said Mark J. Geragos, a Los Angeles defense lawyer known for his celebrity clients, who challenged cell tower data while defending Scott Peterson, a Modesto, Calif., fertilizer salesman sentenced to death in 2005 for killing his pregnant wife, Laci.

Many people know that cellphones can be used as global positioning devices in real time. Yet few are aware that phone companies keep records from transmitters for months or longer that can be used to trace approximately where a caller was at the time a crime was committed.

“It’s another arrow in the quiver,” said Joyce B. David, a lawyer whose client Darryl Littlejohn, a nightclub bouncer, is facing trial in the death of Imette St. Guillen, a graduate student found strangled in February 2006. When he was arraigned, the police and prosecutors said cell tower records from the day of the killing indicated movement from his home to near the spot in Brooklyn where Ms. St. Guillen’s body was found.

California: Divorce Attorneys Raid Electronic Toll Road Data

Divorce attorneys track the every move of California motorists who use FasTrak electronic toll road transponders.

Records of every trip a motorist takes on an electronic toll road over a five-year period is fair game for divorce attorneys and others given access to California's FasTrak system. The device records the location, date and time that a vehicle equipped with a transponder passes a tolling checkpoint. The data is held indefinitely.

A Contra Costa Times investigation earlier this month found about twenty subpoenas used in the past two years to gain information about a handful of the 620,000 FasTrak users in the San Francisco Bay area who crossed one of eight toll bridges. Divorce lawyer Alexandra Mussallem uses FasTrak to build a case.

"We often have arguments about whether or not one spouse works to his or her maximum earning capacity," Mussallem told the Times. "If someone hits the Bay Bridge toll plaza at noon on a day he said he was working, you know he's not working. He might be with his girlfriend in Contra Costa County."

FasTrak has an unadvertised anonymous account option for motorists who do not wish to be tracked. A FasTrak device -- which still has a serial number and is tracked -- is linked to an account with no personal details. The motorist may go to a service center in person to update the account with cash.

Sources: TheNewspaper.com and  FasTrak to courthouse (Contra Costa Times (CA), 6/5/2007)

Source for Post: California Divorce and Family Law Blog

Potential Liability From Hiring a Private Investigator

Fellow blogger Dan Nunley at the Oklahoma Family Law Blog has the following wise cautionary observations on  the use of private investigators, as related in our posting of Alabama Family Law Blog's message on the subject:

Michael Sherman of the Alabama Family Law Blog encouraged those suspecting their spouses of infidelity to consider hiring a private investigator. While most states including Oklahoma no longer make fault a prerequisite of divorce, establishing fault (such as adultery) can benefit a spouse when it comes to decisions such as custody and property division. And some spouses hire a private investigator for just such reasons.

However, truth be told, most private investigators are retained to uncover evidence of unfaithfulness simply because the innocent spouse has been hurt and now wants at a minimum, verification of the betrayal, and as a matter of principal, payback or revenge. But the innocent spouse needs to proceed carefully, because improper surveillance tactics on the part of the investigator could very likely boomerang causing the innocent spouse to now be liable to the cheating spouse.

There are strict state and federal laws regarding the use of surveillance equipment such as listening devices which allow you to eavesdrop on another person, hidden cameras which let you view the activities of others without their knowledge, GPS tracking devices which allow you to monitor the location of someone's vehicle, and other gadgets or software installed on someone else's computer to monitor their internet activities.

So a word to the wise would be "CAUTION".  Proceed with caution when contemplating spying on your spouse.

CyberStalking: Eliminating "Cyber-confusion"

Recently, the term "cyberstalking" seems to be cropping up everywhere. But no one seems to know exactly what it means. Is it stalking by computer? By hidden cameras? By email? Is it cyberstalking to use a cell phone or pager to track someone? What technologies are really covered by cyberstalking? And why should anyone care?

The law rests on the accurate use of terms. For more than a decade, advocates and legislators have struggled to define stalking and write laws to prosecute stalkers. Now that all states have passed anti-stalking laws, law enforcement professionals, as well as the public, are starting to share a common understanding of the elements and definition of stalking.

Stalking takes many forms. Stalkers can physically follow their victims. They can use phones, the U.S. Postal Service, couriers, and even florists to track and pressure their prey. Stalkers can also bombard their victims with instant messages, photograph them with hidden cameras, install surveillance software on their computers, and use global positioning systems (GPS) to track them in their cars. But no matter what tools they use, stalkers are still stalkers.

So what's wrong with describing technology-aided stalking as "cyberstalking"? On the surface, the term seems harmless. But a closer look suggests a few problems. "Cyber" usually refers to the Internet. The term may be stretched to encompass all use of computers. But it does not cover the use of many other forms of technology. So it's inaccurate to describe stalking with GPS or a camera as cyberstalking. Some states have passed cyberstalking statutes to cover stalking via email, websites, and chat rooms (that require computers). But what happens when attorneys try to apply cyberstalking statutes to technology that the statutes do not address? Some confusion is inevitable.

Although most professionals now use computers, many are still intimidated by the complexity of technology. Many stalking-savvy law enforcement officers, prosecutors, or advocates hesitate to get involved in a case described as cyberstalking because they are not experts in the inner workings of a computer. The term "cyber" distracts them from what they already know about stalking laws and how to build a case. They forget that they can hire technology experts to explain how new technologies operate. What is most important for criminal justice professionals is to understand the basics and dynamics of stalking and, in general, how their state statutes address technology. Building on such a foundation, they can prosecute the ever-evolving forms of stalking with technology.

To deal effectively with technology's impact on stalking, we, as criminal justice professionals should make sure our language is appropriate. Instead of getting hung up on cyberstalking, why don't we just` say "the use of technology to stalk"? That way, the crime is clear, and "technology" covers the host of tools the stalker can use (now and in the future) to commit their crimes. Once we've defined our terms, law enforcement can go back to catching stalkers, Merriam-Webster can wrestle with "cyber," and we can all return to our computers with renewed confidence.

SOURCE: Stalking Resource Center

Stalkers Use GPS to Track Victims

Connie Adams found it impossible to escape her ex-boyfriend.

He would follow her as she drove to work or ran errands. He would inexplicably pull up next to her at stoplights and once tried to run her off the highway, authorities said.

When he showed up at a bar she was visiting for the first time, on a date, Adams began to suspect Paul Seidler wasn't operating on instinct alone.

He wasn't. Seidler had installed a satellite tracking device in Adams' car, according to police in Kenosha, Wisconsin, 30 miles south of Milwaukee.

"He told me no matter where I went or what I did, he would know where I was," Adams testified at a recent court hearing.

Police say Adams' case and several others across the country herald an incipient danger: high-tech stalking.

Just as the global satellite positioning system can help save lives, so can its abuse endanger them, advocates of stalking victims say.

"As technology advances, it's going to be almost impossible for victims to flee and get to safety," said Cindy Southworth, director of technology at the National Network to End Domestic Violence in Washington.

In the Adams case, Seidler pleaded innocent last month to felony counts of stalking, recklessly endangering safety, burglary and a misdemeanor count of disorderly conduct. His trial is pending.

High-Tech Evidence: A Lawyer's Friend or Foe?

Technology has turned into a lawyer's best friend -- or worst nightmare -- as new forms of electronic evidence are popping up in courtrooms nationwide, giving litigators more access to personal data than ever before.

Criminal and civil attorneys alike say that in recent years they have tapped into new sources of electronic data -- from cellular towers, electronic toll booths and auto-location tracking devices -- that make it easier to prosecute crimes and support claims.

But others warn that the increasing use of such data for surveillance -- something consumers are largely unaware of -- gives rise to serious privacy concerns.

Information from cellular towers, for example, is being used to track down kidnapping and murder suspects. E-ZPass and other tollbooth records are being subpoenaed by divorce attorneys to catch cheating spouses, or prove a parent isn't around enough in a custody case. Data from tiny black boxes that monitor a car's movements are being subpoenaed by insurance companies investigating accident claims. And state agencies are using new high-tech software to catch tax scofflaws.

Many lawyers say it's a fact: Technology is invading the legal world. But it's a welcome invasion, they say, and few are resisting.

COMPUTER TRESPASSING WHAT YOU SHOULD KNOW?

Frequently asked hypothetical question?

• If Wife guesses Husband’s password, can she look at the Husband’s email?  NO, this is a violation of the computer privacy statute.
• If Husband leaves his computer open with emails displayed, can Wife read and print those emails, without Husband’s permission?  No, not if Husband has not given Wife permission.
• Can you install spyware or a keystroke program to the family computer to monitor your spouse’s usage once he or she has left the marital home?  NO, it is a violation of the Computer Systems Protective Act.
• If our computer and email accounts are not password protected can I access the information?  Generally, yes.
• What if we use a family computer and everyone uses the same programs, Internet, email accounts, etc., can I look at my spouses downloads and emails?  Generally yes.

There are two statutes you should familiarize yourself with prior to obtaining information about the opposing party or potential witnesses through the computer, email, Internet, or other similar method. 

O.C.G.A. § 16-9-93(b) - Computer Trespass:  Using a computer with knowledge that such use is without authority and with the intention of: (1) deleting or in any way removing, either temporarily or permanently, any computer data (2) obstructing, interrupting, or in any way interfering with the use of a computer program or data (3) Altering, damaging, or in any way causing the malfunction of a computer.

O.C.G.A. § 16-9-93(c) - Computer Invasion of Privacy:  Any person who uses a computer with the intention of examining any employment, medical, salary, credit, or any other financial or personal data relating to any other person with knowledge that such examination is without authority shall be guilty of computer invasion of privacy, but it could also be a violation of O.C.G.A. § 16-9-93(a) Computer Theft, which provides:  “Any person who uses a computer with knowledge that such use is without authority and with the intention of:  (1) taking or appropriating any property of another, whether or not with the intention of depriving the owner of possession, or (2) obtaining property by deceitful means of artful practice."

SOURCE: Coleman & Chambers

Digging Deeply Into Matrimonial Data Mining

The first part of this article discussed the importance and focus of data retrieval in matrimonial actions and the parameters of data mining. The conclusion herein addresses privacy concerns, the impact of e-mail and the costs of data retrieval.

PRIVACY CONCERNS REGARDING DATA MINING

Some privacy advocates have attacked data mining during the pendency of matrimonial actions as an inherent invasion of the privacy of one party.

Arguments have also been raised that data forensics, conducted unilaterally by one side inherently lead to the hoarding of relevant information by the adverse party ultimately for dissemination as he or she deems fit.

Additionally, there are extremely valid concerns surrounding medical records and medical information. Counsel can certainly voice specific and relevant privacy concerns to the trial judge. Furthermore, it is likely that legislation will be enacted in the upcoming years that will effectively weaken the ability of one party to manipulate the process.

Mining Matrimonial E-Data

Few technological advancements or social movements have impacted matrimonial law as profoundly as the computer/electronic age. Today, litigants have a virtual Pandora's box of incredibly vast yet retrievable information at their fingertips, which all too often remains underutilized or undiscovered.

Currently, stored data can be retrieved from joint marital assets such as computers, cell phones or even facsimile devices with memory capabilities. The information stems from usage, whether explicitly "saved" by the computer operator or not. It can later be deciphered or interpreted by a trained professional and can yield countless bits of information to assist in discovery.

Furthermore, it is extremely difficult to wipe clean or erase hard drives and other comparable data retention devices, a fact which has created a niche for data forensics in the ever expanding and changing contemporary computing environment. Trained professionals can often delve deep into the layers of electronic data contained on a litigant's hard drive or data storage device in a process that is akin to a modern-day electronic archeological dig.

We, as matrimonial attorneys, can utilize data mining or data forensics to strengthen the knowledge and understanding we have of both our adversary and our clients, thus leading us to the best strategic roadmap or overall plan for success. This two-part article will explore some of the issues involved in data mining.

Is a virtual affair real-world infidelity?

Or are in-game chats and animated sex just harmless experiments?

Sam had met someone, and it was getting serious.

It started out as a friendship, as many relationships do. But gradually Sam's feelings for Kat, a beautiful, smart and confident woman, had turned romantic.

Hang on — there’s a catch. Sam and Kat met in the virtual world Second Life. And although they shared all kinds of intimacies in Second Life, the real people have never laid eyes on each other.

That didn’t seem to matter to Sam. He fell pretty hard for his avatar sweetie. They bonded intellectually, emotionally, and yes, thanks to Second Life animations, even physically.

Here’s where it gets complicated. Unlike his avatar, which is female, in real life, Sam is a man. A married man. And the person behind the blonde, curvaceous Kat? Married. And, quite possibly, a man, too.

(As you might imagine, some people interviewed for this story did not want to reveal their full names. Some gave us their avatar names, while others went with pseudonyms.)

Illegal Electronic Surveillance in Divorce Cases

E-surveillance is a growing trend in divorce cases. One spouse installs software on the family computer to keep an electronic eye on their spouse. Thank you to Lee Rosen at the Rosen Law Firm in North Carolina for the alert to this article on CNet's Police Blotter:

What: Husband uses keystroke logger to spy on wife's suspected relationship with another woman, who sues to prevent the records from being used in the divorce case.

When: U.S. District Judge Thomas Rose in the southern district of Ohio rules on February 14.

Outcome: Rose denies request for injunction preventing the electronic documents from being introduced as evidence in the divorce case.

What happened, according to court documents:
Once upon a time, tempestuous divorces might have included one spouse snooping through the other's private correspondence or eavesdropping on private conversations taking place in another room.

That kind of snooping was, for the most part, entirely legal. But when the same kind of snooping happens in electronic form, it can be a federal crime. (Last year, Police Blotter covered the case of the Garfinkel divorce. Another case involving spyware arose a year earlier.)

Virtual Visitation: Webcams and Weekly Visits

Proponents of the Web cam option seek to get it included in custody agreements and in state custody laws.

But not everyone is ready for it.

Instead of counting the months until she would see her son each summer, Carrie Hammond needed only count the hours until Kegan's face would light up her computer screen. Though Kegan, 6, was in Tennessee with his father, and Hammond, 27, lived in San Marcos, the two were participating in virtual visitation as part of the family's child-custody agreement by making video calls via Web cameras. "It's been instrumental in keeping the relationship strong," Hammond said, recalling their hours-long, twice-weekly Web cam sessions.

Recently, Kegan chose to move in with Hammond, a decision she attributes to the emotional closeness the Web cams afforded them for four years.

Virtual visitation is becoming a popular way to incorporate the potential of modern technology into the lives of parents and children separated by divorce and distance. Utah, Wisconsin and most recently, Missouri, have made virtual visitation state law, and several other state legislatures, including those in California and Ohio, are considering making it a formal supplement to physical custody arrangements.

Georgia's Laws on Taping Phone Calls and In-Person Conversations

Ga. Code Ann. § 16-11-62: Secretly recording or overhearing a conversation held in a private place, whether carried out orally or by wire or electronic means, is criminally punishable as a felony under statutory provisions regarding invasions of privacy. However, the law expressly provides that it does not prohibit a person who is a party to a conversation from recording and does not prohibit recording if one party to the conversation has given prior consent. Ga. Code Ann. § 16-11-66.

Interception of a private cellular telephone conversation without the consent of at least one of the parties is a misdemeanor. Barlow v. Barlow, 526 S.E. 2d 857 (2000).

A civil action for wiretapping offenses is authorized. Tapley v. Collins, 41 F. Supp.2d 1366 (S.D. Ga. 1999), rev'd on other grounds, 211 F.3d 1210 (11th Cir. 2000).

Use of a hidden camera "without the consent of all persons observed, to observe, photograph, or record the activities of another which occur in any private place and out of public view" is illegal.  Ga. Code Ann. § 16-11-62(2).

For information on other states' laws on the subject, see the website, "Can We Tape?"