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Dishonest spouses leave electronic trails
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In 21st century divorce cases, electronic data is a key source of evidence – whether it’s instant messages, web browsing histories or text messages sent via cell phone.
Laws regulating electronic evidence vary tremendously from state to state. But across the country spouses are scouring electronic gadgets to uncover unfaithfulness and find hidden assets.
Electronic evidence in divorce cases can come from:
* GPS histories of a vehicle’s locations and the amount of time spent at each one;
* EZ pass records showing toll booth locations en route to a rendezvous;
* Deleted e-mails;
* Internet histories detailing web pages a person has visited (such as gambling or dating sites); and
* Blackberry and cell phone records.
Many states have no-fault divorce laws, so proving infidelity isn’t necessary
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in divorce proceedings in those states. Even so, electronic evidence can and does turn up evidence of hidden assets such as bank accounts.
Workplace computers are fair game in divorce discovery and often turn up important financial information. If statements from private bank accounts aren’t on workplace computers, often information about the true worth of a closely held company is, for example.
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Fighting for control over mom and dad
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Mark Glasser and Suzanne Matthews have waged one of the most acrimonious custody battles in recent history, reportedly running up a legal bill of some $3 million.
But they are not a divorced couple fighting over children. They are brother and sister fighting over guardianship of their mother.
Their mother, Lillian Glasser, has a large fortune once estimated at $25 million. Matthews had sought to become her mother’s guardian and transferred $20 million of her mother’s money to a family limited partnership, but her brother fought the attempt and supported a petition from a family friend to be her guardian.
Last year, a New Jersey Superior Court judge appointed two non-family guardians for Mrs. Glasser and ordered Matthews to return the money.
The case is extreme, but it’s an example of a growing trend: Custody battles among adult children over where their elderly parents should live, who should care for them and who has control of the finances.
As life spans increase, the prospects for sibling squabbles over mom and dad grow more likely.
These cases involve legal issues involving Medicare/Medicaid, guardianship laws, and powers of attorney.
We are available to discuss ways to resolve this type of matter, which can be emotionally-charged and difficult for families.
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Divorced father must pay son’s funeral expenses
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A divorced father can be required to pay half of his son’s funeral expenses, even though his ex-wife was awarded sole custody, according to a recent ruling by the Kentucky Court of Appeals.
The son’s father and mother divorced and the father was ordered to pay child support and medical insurance.
Fifteen years later their son was diagnosed with cancer. Before he died, the mother incurred expenses and lost her job due to spending time caring for him.
The father received $10,000 from a death benefits policy on the son he had maintained through his employer.
State law said fathers of children
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born out of wedlock are responsible for funeral expenses and that deviations from child support orders are permissible to ensure a just and appropriate result.
The son’s funeral expenses totaled $8,500 and the mother asked the court to require the father to pay half.
The father argued he shouldn’t have to pay because the mother had sole custody. But the court said it would be particularly unjust to require the mother to pay the entire amount of the funeral expenses and allow the man to collect the $10,000 death benefit.
Courts in Illinois, Indiana and Tennessee have made similar rulings.
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Unwed father’s estate must pay child support
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The estate of an unwed father may be required to pay child support, according to a recent ruling by the Massachusetts Supreme Judicial Court.
The child’s mother was unmarried when she gave birth to her daughter. The child’s father acknowledged he was the father, and for a number of years voluntarily made substantial payments towards his daughter’s upbringing.
After the father died in an automobile accident, the mother pursued a court proceeding to establish the father’s paternity and to receive child support.
The executor of the man’s estate argued that a parent’s estate can’t be ordered to pay child support if such an order wasn’t entered during the parent’s lifetime.
But the court disagreed. Recognizing an estate’s obligation to pay support is consistent with the state legislature’s
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policy that parents support children born out of wedlock, the court said.
Also, a parent may forego getting a support order while the other parent is alive for a variety of reasons, such as financial limitations or the other parent is voluntarily making payments, the court noted
Most importantly, a child’s need for support is ongoing, the court said, and doesn’t end on the death of a parent who has been providing support payments.
The New Mexico Court of Appeals has made a similar ruling.
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Ex-husband can refuse physical examination, insurance
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A divorced wife can’t require her ex-husband to submit to a physical exam for getting a life insurance policy related to alimony and child support payments, the Nebraska Supreme Court has ruled.
The husband and wife made various post-marital agreements to address distributions of their property, alimony and child support payments in the event they ever divorced.
The husband agreed to establish a $1 million trust for their children, and to obtain a $1 million life insurance policy naming the trust as the beneficiary. He initially deposited $10 in the trust and promised to deposit more, but he never did.
The couple eventually divorced. The husband was ordered to pay nearly $20,000 a month in alimony and child support, which cumulatively totaled over $1.5 million.
The wife pursued a court proceeding to order the husband to submit to a physical exam so she could obtain an insurance policy on his life as a way to secure the alimony and child support payments.
The husband objected, saying under state law he had to consent to the exam. The wife countered that she had an
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insurable interest on his life and the consent law didn’t apply.
The Nebraska Supreme Court sided with the husband, saying even if the wife has an insurable interest on the husband’s life, that doesn’t give her the right to own a policy on his life without his consent.
Courts in other states have made similar rulings, saying it’s against public policy to permit a person to insure the life of another absent that person’s consent or knowledge.
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Open adoptions present thorny custody rights issues
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A closely watched case in Minnesota may reveal what rights a biological father has to enforce visitation granted to him by adoptive parents and approved by a court.
The case involves a court-approved pre-adoption contract a trial judge decided to terminate after the adoptive parents told the court about the birth father’s threatening and abusive behavior.
The birth father gave up his parental rights only after the adopting parents agreed he could have limited contact with the child, including visitation and reasonable telephone contact.
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One concern with this type of arrangement is that if birth parents have no rights after the adoption, then couples seeking to adopt could try to convince birth parents they should give up their child, and promise them anything under the sun for doing so, and then fail to deliver. On the other hand, adoptive parents have a constitutional right to control the upbringing of their child.
The Minnesota Supreme Court’s decision could have a profound effect on future adoptions where the birth parents retain any involvement with the child.
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Palimony claim doesn’t require cohabitation
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Cohabitation is no longer an “indispensable element” of a palimony claim, according to a recent ruling by the New Jersey Supreme Court.
In the case, a woman and married man who worked together had a 20-year affair. The man promised to divorce his wife and have a child with the woman.
The divorce never occurred, but in the intervening 20 years the man paid for the woman’s undergraduate and graduate degrees, bought her a condominium to live in, and visited her regularly. When they discovered she could not get pregnant, the relationship ended.
The woman then sued for palimony,
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claiming they had established a marital-type relationship despite never living together.
The court ultimately ruled against the woman, but in so doing rejected the concept that cohabitation is a prerequisite for palimony claims.
While cohabitation is relevant to assessing whether a marital-type relationship exists,
the court said each case has to be assessed
individually and such a relationship may exist absent cohabitation.
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California marriage ruling has ripple effect
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Now that the highest court of the most populous state has paved the way for gay marriage, other states are certain to experience ripple effects from the landmark ruling.
Couples married in California will eventually seek some form of recognition of their California marriage in their home state on a variety of issues, such as the benefits normally attached to marriage, the marriage itself or, in some cases, a divorce.
Aside from the ruling itself, the court’s analysis of sexual orientation discrimination sets a new standard that may influence other courts. If other courts were to adopt the same standard, it would be virtually impossible to justify a statute that discriminates based on sexual orientation, such as Florida’s adoption statute, which prohibits adoption by same-sex couples.
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Some areas of potential litigation include spousal health benefits, workers’ compensation, insurance, mortgage and banking, and divorce.
California employers and out-of-state companies who employ workers in California will need to look at the benefits and perks they provide to heterosexual spouses and apply them to same-sex couples. This could include child-care benefits, travel benefits, employee discounts and even invitations to social events that are extended to spouses of heterosexual workers.
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This newsletter is designed to keep you up-to-date with changes in the law. For help with these or any other legal issues, please call our firm today.
The information in this newsletter is intended solely for your information. It does not constitute legal advice, and it should not be relied on without a discussion of your specific situation with an attorney.
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