FLINT DIVORCE ATTORNEY TERRY BANKERT REVIEWS THE USE OF FACEBOOK AND SOCIAL MEDIA IN DOMESTIC LITIGATION AND NEGOTIATION.
This article is in a fully cited note taking style CAP HEADINES are by the author for lay understanding and SEO.
A friend once told me she list’s the opposite parties face book friends on her witness list to get a rise out of the opposite party. [trb]
It was only a matter of time: Divorce lawyers who once dug through trash for evidence of cheating are now trolling Facebook and other sites for signs of “social cheatworking.”[4]
DOES DUE DILIGENCE REQUIRE A LOOK AT FACEBOOK AND OTHER SOCIAL MEDIA?
A new survey has found that social networking site Facebook is being cited in most divorce cases as the main provider of evidence of spouses cheating.[1]
CRIMINAL INVESTIGATORS HAVE BEED USING THIS EVIDENCE DOMESTIC ARE BEGINNING.
Criminal Activity. Postings of text and photos on social networking sites have been the source of discovery of criminal activity and, ultimately, evidence of crimes. Social networking activities have also served as a catalyst for offline criminal activities and charges[7]
SOCIAL NETWORKING AS EVIDENCE[10]
DOES YOUR FACEBOOK SHOW HOW YOU LEAD YOU LIFE?
The legal world took notice when, on February 20, 2009, the Ontario Superior Court of Justice permitted a defendant to cross-examine a plaintiff in a tort suit about his private Facebook profile. 87 The Court [*12] noted that it was "reasonable to infer that his social networking site likely contained some content relevant to the issue of how [the plaintiff] has been able to lead his life since the accident." 88
[10]
IS SKIING PHYSICAL THERAPY?
There is also the famous case where a woman claiming serious injuries after a car accident was confronted by photos of her skiing in the Swiss Alps. 89 Whoops. [10]
FACEBOOK IS NOT A PRIVATE DISCUSSION.
In another case, a woman lost a custody battle after sexually explicit comments on her boyfriend's MySpace page came to light. 90 And in yet another instance, a husband lost credibility after describing himself on MySpace as "single and looking." 91
[10]
WHEN ANY LITIGATION BEGINS DELETE OR PUT ON PRIVATE ALL YOUR SOCIAL MEDIA AND HOPE FOR THE BEST.
In criminal cases, social networking sites often come into play. In 2007, Jessica Binkerd was sentenced to five years and four months in prison after she drove under the influence of alcohol and was involved in a crash that resulted in the death of her passenger. 92 Her attorney anticipated that she would get probation, but she was sentenced to prison after evidence from her MySpace page showed her wearing an outfit with a belt that had plastic shot glasses on it. 93 Other photos showed her holding a beer bottle and wearing a shirt advertising tequila. 94 As her attorney put it, even though the outfit was part of a Halloween costume, the photos were all the judge talked about, saying that she had learned no lesson and showed no remorse. 95
[10]
In 2008, two weeks after being charged with drunk driving in an accident that seriously injured a woman, Joshua Lipton made the foolish decision to show up at a Halloween party in a prisoner costume with the label "Jail Bird" on his orange jumpsuit. 96 Someone posted the photo on Facebook and the prosecutor made effective use of the photo of this young man partying while his victim was recovering in a hospital. 97 The judge called the photos "depraved" and sentenced him to two years in prison. 98 [*13]
[10]
In another sentencing hearing, Matthew Cordova found himself with a five-year prison sentence in Arizona. 99 He had pled guilty to aggravated assault with a gun. 100 At the hearing, his attorney tried to portray him as a peaceful man who had found religion, yet the prosecution had a MySpace picture of Cordova holding a gun which he posted comments about. 101
[10]
In 2009, Raul Cortez was found guilty of murder. 102 He might not have been sent to death row, however, without the gang signs and colors displayed on his MySpace page being introduced in court. 103
[10]
BIG BROTHER IS LOOKING!
The police often use social networking sites in their investigations, while prosecutors check the sites of gang members, who regularly discuss their activities on their social networking sites. 104 Happily, they are often dumb enough to provide great fodder for criminal investigations. 105
[10]
FOR DIVORCE LITIGATION AND FIRST DATES CHECK THE SOCIAL MEDIA
Many divorce attorneys have reported to the authors that, whenever they get a new case, they Google all the parties (including their own client) and also check their social networking sites. In one such case in which the authors were involved, a well-groomed woman who portrayed herself as a "soccer mom" was undone by explicit photos of herself that she had posted online looking to "hook up" with men. 106 Dad got custody. 107
[10]
THIS IS LIKE WHISPERING SWEET NOTHINGS ON NETWORK NEWS!
In another case the authors handled, a wife learned of her husband's infidelity because she talked to his lover on his Facebook page. 108 Though the wife had no access to the page, one of her friends did. [10]
EUREKA!
It should now be a matter of professional competence for attorneys to take the time to investigate social networking sites. You must pan for gold where the vein lies - and today, the mother lode is often online.[10]
IF I HAVE SEEN 1 FACBOOK PAGE PRINTOUT I HAVE SEEN A THOUSAND
A survey of the nation's top lawyers shows more clients are coming to divorce court armed with Facebook evidence to prove spouses are cheating, according to MyFoxPhilly.com.[2]
More than 80% of respondents to a survey by the American Academy of Matrimonial Lawyers reported a spike in social media site spying -- the same kind done by marketers.[4]
Social media stalking skills have become invaluable to the legal world for divorce cases in particular. Online photo albums, profile pages, wall comments, status updates and tweets have become gold mines for evidence and leads. Today, divorce and family law firms routinely cull information posted on social media sites — the flirty exchanges with a paramour, unsavory self-revelations and compromising photographs — to buttress their case.[6]
We've all known for a while now that spouses are using social networking transcripts as justification for ending marriages -- even in the courtroom. And, as we've said before, that doesn't come as a huge surprise. Virtually everything we do today leaves some sort of trail behind us, whether it's in the form of cell phone bills, e-mail exchanges, or Wall posts. Facebook just happens to be the most convenient means by which we can find lost loves, former flames, or, as the case may be, quasi-anonymous acquaintances. [3]
The survey was conducted on some of the nation’s top divorce lawyers, and they revealed that their clients come to court armed with evidence they got from the website.[1]
“More and more I have clients coming in and I say, ‘What are you here today for ’ And they say, ‘Facebook’,” Fox News quoted divorce attorney Mary Cay Trace as saying. “You can now search beyond your neighbours and your co-workers if you’re trying to find somebody to replace what you think is missing in your marriage,” she stated.[1]
The reason is simple. Many people don't understand how social media works. Specifically, they aren't fully aware of the controls that help protect privacy. Think of the massive confusion Facebook recently caused with its control changes.[4]
Are Social Networking Profiles Discoverable? A Canadian Court recently answered this question affirmatively. In Leduc v. Roman, Ont. Super. Ct. No. 06-cv-3054666PD3 (February 20, 2009), the court allowed pretial discovery of a party’s Facebook profile[22]. The plaintiff had brought an auto negligence action and the defendant sought information from the profile relevant to the question of whether the accident had impacted his ability to participate in his regular activities. The court further stated that the plaintiff’s privacy settings were irrelevant and that the profile information was “data and information in electronic form” discoverable under Canada’s Rules of Civil Procedure.[7]
The Internet, Facebook, E-Mails and Electronic Storage Devices[8]
A good example of use of an interrogatory would be to adopt a standard discovery request. This discovery request would be a good baseline to discuss with your own client where he or she receives their electronic information and the way that they may be requested to supply the same information in return. [8]
When considering how electronic discovery may assist litigation, also be aware of the legal and ethical landmines for both you and your client. The client should be made aware of current wire tapping law prohibiting certain “spy tactics” such as hidden cameras, computer spyware and wire tapping. Be aware if your client, as well as opposing party) is participating in social networking sites, such as MySpace, Match.com or Adultfriendfinder.com. Finally, remember you can potentially be held liable if you review or even know about private information that your client obtained illegally[8]
An emerging area for uncovering information about employees’ off-duty conduct and possible misconduct are social networking sites, such as Facebook, Twitter, LinkedIn, and employees’ own blogs. An employer’s examination of an employee’s social network sites may reveal conduct that violates the employer’s confidentiality, ethics, fraternization, and leave-of-absence policies, among others. While reviewing these sites may provide information about policy violations, using these resources may also set employers up for various claims by employees. The risks for employers include invasion-of-privacy claims, Fair Credit and Reporting Act violations, and state and federal antidiscrimination law claims. Because of these risks, employers that use social networking sites to gather information as part of an investigation should carefully consider what information should be collected and evaluated before using it as a basis for employment decisions. [9]
A mother of two showed via Skype Internet love notes posted between her husband and an old grade-school flame he reconnected with on Facebook. Within months, the 13-year marriage was over, with her husband’s new woman also ending her own marriage. The families had two children each.[1]
But it is not always the betrayed spouse who stumbles across the Internet evidence. Even worse, it’s friends, neighbours and sometimes the children who bust their parent. [1]
You'd think, though, that at some point, the trend would begin to reverse, as more people become more aware of the indelibility of their actions. Instead of seeing social networking as an opportunity to check out other men or women, perhaps people will begin to see the ubiquitous phenomenon as a good reason not to cheat, in the same way that surveillance cameras at ATMs often discourage criminals from theft. A lot of people, of course, will always cave to carnal temptation, and may very well use social networking to satisfy that craving. But that doesn't necessarily negate the potential for Facebook and its brethren to strengthen as many marriages as it purportedly destroys.[3]
In effect, social networks are becoming the desk drawers or glove compartments where a cheater is most likely to leave the most evidence.[4]
Even if you are reasonably sure you can protect your Facebook profile from your spouse, that doesn’t mean you can protect it from his or her lawyer. Remember, good divorce attorneys (or their hired private investigators) don’t even need to catch directly incriminating evidence on Facebook — they just need a good lead.[5]
And if there’s one thing you can always count on from the two-timers, it’s carelessness, if not laziness.[4]
Here‘s an option: Be faithful. That‘s the point of getting married in the first place, isn‘t it?[4]
Posted here by
Terry Bankert
http://attorneybankert.com
Or
http://dumpmyspouse.com
Sources
[1]
http://beta.thehindu.com/sci-tech/internet/article445786.ece
[2]
http://www.foxnews.com/scitech/2010/06/02/survey-shows-facebook-driving-divorce-rate/
[3]
http://www.myfoxphilly.com/dpp/news/scitech/Facebook_Divorce_Lawyers_Survey_Infidelity_060110
[4]
http://www.cliffviewpilot.com/beyond/1324-more-cheaters-handing-their-spouses-evidence-on-facebook-other-social-media
[5]
http://abovethelaw.com/2010/06/divorce-lawyers-turn-facebook-into-a-case-winning-gold-mine/
[6]
http://dailycaller.com/2010/06/02/divorce-attorneys-catching-cheaters-on-facebook/
[7]
Hot Topics in entertainment Law: Gaming & Internet Law. Legal Issues in Social Networking by kazthryn L Ossian Miller, canfield Paddock and Stone PLC Detroit.05/20/2009
[8]
Fundamentals of Divorce Practice Procedures (09/10/09) by James Cunningham of Williams Williams , Rattner & Plunkett PC Birmingham.
[9]
Fundamentals of Divorce Practice Procedure 99-10-09)by James P. Cunningham of Williams Williams Rattner & pLunkett LC Birmingham.
[10]
The Legal Implications of Social Networking, Sharon Nelson, John Simek and Jason Foltin/. Regent university Law review 2009 22 Regent University Law Review.
[trb] Terry Bankert Attorney 1000 Beach St. Flint MI 810-235-1970
http://attorneybankert.com
Thursday, June 3, 2010
Flint Divorce lawyer says your facebook post may be evidence in Divorce.
Al Gore and Tipper Gore poster children for late stage divorce or separation by Flint Divorce Lawyer Terry Bankert 810-235-1970
Divorce Court headed Al Gore and his soon to be divorced wife Tipper Gore will soon be in their jurisdictions family court. These late stage baby boomer divorces are on the rise. Flint divorce attorney Terry Bankert a leading expert in Genesee County Michigan comments on Boomers and late stage divorce. For questions or immediate help contact Divorce Lawyer Terry Bankert 235-1970.
From the united States census the following data is forun on the divorcing seniot population.[2]
Year …..percentage of all adult identified as divorced persons …65 or older listed as divorced.
1990.…..9%……………………………….....................................5%………………………….
1995.…..9.1%………………………………..................................5.7%………………………..
2000.…..9.3%………………………………..................................6.7%………………………..
2005.…..9.7%………………………………..................................7.9%………………………..
There was no salacious sex scandal, no prostitution ring, no mysterious trip to Argentina.
Al and Tipper Gore are a famous political couple, but their split after 40 years of marriage apparently stemmed from a much simpler, more mundane cause, according to friends: They simply grew apart.[3]
And in that, experts say, they're no different from many Americans. Such late-marriage splits are much more common than we think.[3]
One probable factor could be the extreme stress of handling the empty nest syndrome together with post-retirement blues. These people had solely concentrated on their respective jobs and on being good parents to their children. In this process, they had forgotten to enjoy the company of each other. When left together in their old age, neither liked to spend time with the other. [1]
The population of divorced people over 65 has exploded in the past 15 years, and elder-law attorneys suspect money is at least partly to blame.[2]
The idea that money might be a factor in divorce isn't news. But instead of fighting over their money, these attorneys say, older people who divorce might be trying to preserve it.[2]
Al Gore may have a divorce attorney while Tipper Gore has her own Divorce lawyer. The Gores do have other options if the lived in Michigan. They can and probably will choose a private process where their possibly “collaborative law” legal counsel will forge a divorce judgment before a case is filed.
They may privately mediate instead of publicly litigating. Terry Bankert is a Flint based family Law mediator.
Al Gore and Tipper gore also have an option of not divorcing but entering into a separate maintenance agreement where they remain married but lead separate lives with their portion of the marital estate.
It's significant that Al and Tipper Gore married in 1970, notes Stephanie Coontz, author of "Marriage, A History," and professor of family studies at Evergreen State College in Olympia, Wash. Marriages in the late '60s and '70s are marked by higher divorce rates than those of later years, she says. Why? Partly because people still married very young. (Tipper Gore was 21 and Al Gore 22 when they wed.)[4]
The two are now 61 and 62, with decades of health, seemingly, ahead of them. "The idea used to be that by our sixties, life was pretty much over anyway," says Coontz. "But today, people who reach 65 are likely to have another 20 years ahead. So it makes the calculus of living in an unhappy marriage even harder to take."[3]
The Gores' announcement
Break-ups among long-term married couples -- who have invested 30, 40 or more years into a relationship -- is an uncommon phenomenon compared to the skyrocketing divorce rates among naive newlyweds or parents overwhelmed with children, marriage experts say. But the number of long-term relationships headed toward separation -- like the Gores -- is becoming more frequent with longer life spans and a growing acceptability of divorce, they say.[5]
"Staying in exactly the right relationship to one another is a very hard thing to maintain every decade," said Pepper Schwartz, professor of sociology at the University of Washington. "People think you only get closer over time, but that's not necessarily true."[5]
These late stage baby boomer divorces are on the rise. Why? What are the effects on women and men of late stage divorce.
DO MEDICAL INSURANCE AND GOVERNMENTAL RULE PROMOTE ELDER DIVORCE?
One article talks about an Ohio divorce.
Christine Crawford of Aurora, Ohio, started divorce proceedings after her husband's care for dementia consumed more than $100,000 of their savings.[2]
Crawford said she didn't want to divorce her husband, with whom she'd raised three children, but it was the only way to preserve what was left of their life savings.[2]
Emotional Well-Being [1]
When older people get divorced, its effects are varied on men and women. Older men are often dependants. They are more prone to sickness and their spouse nurtures them back to health. After divorce they are badly affected. They not only miss having a partner, they also lose a responsible caregiver. [1]
Divorced women, however, fare better for they feel freer. Having spent lots of time and energy taking care of their husbands, their post-divorce phase is marked with higher energy levels and more leisure time. [1]
Family and Social Relationships [1]
It is a generally held concept that old and divorced people are unable to extend the required support to their adult children. But, this belief presents only one side of the picture. Majority of the older divorced women had been working. After divorce and retirement they gain more time which they spend with their children. Divorced women are more close to their children. [1]
Only men tend to isolate themselves in the post-divorce period. [1]
Financial Problems [1]
Older women, however, face a major handicap after divorce. They are plagued with financial problems. In the pre-divorce period much of their financial needs were met by their husband. Divorce changes the picture. [1]
Trapped by aid-program rules
To understand why Crawford , mentioned above, faced such a wrenching decision, you need to understand some background:
Medicare, the government insurance program for people 65 and over, doesn't cover long nursing-home stays. [4]
But Medicaid, the federal health program for the poor that does cover such care, generally requires people to exhaust their financialresources before they can qualify for help.[4]
Elders who face the potentially devastating cost of nursing home care frequently look for assistance with “Medicaid planning”—the process by which assets may be sheltered in order to qualify for Medicaid assistance. [6]
When a married person applies for nursing home based Medicaid assistance, the assets of both husband and wife are considered resources. [6]
This is true regardless of how the assets are titled and regardless of whether there is a valid ante nuptial agreement in place.[6]
Unless they are both in the nursing home (in which case they are each treated individually).[6]
Accordingly, a divorce can be one method of “Medicaid planning”—but rarely the best.[6]
Medicaid rules allow much greater asset protections for married persons than single persons.[6]
To qualify, a single person can only have $2,000 of countable assets.[6]
A married couple can keep up to $100,000 of countable assets.[6]
In addition, assets in excess of the so-called “protected spousal amount” can be sheltered through special spousal trusts, or by court orders.[6]
In addition, it may be possible to protect the combined income of the spouse’s for the needs of the non-nursing home spouse.[6]
Divorce as a Medicaid planning option.[6]
Clearly, the most common cases in which divorce is considered as a planning option are second marriage cases, and especially those of short duration.[6]
The critical issue in these cases, in deciding whether divorce or remaining married will provide the “best result” will often be the extent to which the representatives of the two family groups can trust one another. This is the case because the best methods for protecting assets of a spouse in the nursing home involves transferring assets to the non-nursing home spouse, or into a trust for the benefit of the non-nursing home spouse, and giving that non-nursing home spouse the ability to redirect where those assets will go upon his/her death.[6]
Where the nursing home spouse is under age 65, the additional option of a “Medicaid Payback Special Needs Trust” provides another planning tool that can alleviate some of these issues in some cases[6]
When one spouse gets sick, many married couples face the uncomfortable prospect of having to "spend down" most of their assets to qualify for medicaid,leaving little for the healthy spouse to live on. [2]
Women have consistently earned lesser than men and had many career breaks for child rearing. Quite frequently, they draw no pension after retirement. In the UK just 13% of the women qualify for the basic state pension compared to 92% of the men (The pension amount in itself is too small to survive solely on.). Divorce in this age compounds financial problems for the women. [1]
If this disparity in pension levels continues, future older and divorced women will also be facing plenty of financial problems. [1]
Other causes of divorces
There are doubtless other contributing factors to the rise in the number of divorced folks over 65:
Some of the increase could simply be fallout from the overall rise in divorces. The older a woman is when her marriage dissolves, the less likely she is to remarry. By age 65, women outnumber men, and the disproportion rises as we age.
Other financial factors can also discourage remarriage. A divorced person who receives social security based on an ex's work record could lose those benefits if he or she remarries. Affluent older people may be disinclined to marry if they're concerned about entangling their finances with another person's, or about the extra estate planning that would be necessary to ensure that their kids, rather than their potential new spouse or the spouse's kids, get any future inheritances.[2]
But many people, especially women, emerge from busy child-rearing years with time to re-evaluate their lives and their partners, said Barbara Waxman, an executive and life coach with San Francisco's Odyssey Group who has a master's degree in gerontology.[2]
Rising up to the Challenges Posed by Divorce [1]
Men and women cope differently with divorce. [1]
Work and Health Issues [1]
Women are healthier in the post-divorce period. Being the basic and primary caregivers all through their life, they know how to care well for themselves. They enjoy better health and live longer. [1]
Divorced men rarely know how to manage daily life. Generally, they are not as good as women at house work. They care neither for a notorious diet nor for the upkeep of cleanliness. Lack of nutritious diet coupled with the grief of divorce leaves them badly affected. [1]
Divorce and Loneliness [1]
Divorce leads older men to loneliness. Rather than forming fresh social contacts, they gravitate towards alcohol for relief. With deteriorating social life, substance abuse increases and soon damages their health. And this cycle of deterioration continues. [1]
Women are not lonely. In fact, their social life improves in the post-divorce period while it deteriorates for the men. [1]
Loneliness and Depression [1]
The loneliness these men experience is severe and leads them to depression. Studies indicate that the life span of men who are divorced in their late 50s is reduced by a decade. Divorce affects them so badly. Older divorced men are more prone to an early death compared to widowers. [1]
Aged and divorced women form support groups and help one another. This comradeship is lacking in men. Men rarely venture out and mix with other people. [1]
These differences in circumstances are partly responsible for older women turning divorce initiators. Men rarely initiate these proceedings in their old age. Women cope better with divorce, care for themselves well and are comparatively healthy. The only problem they face is in the financial realm. In other words, divorce in old age affects the emotional well-being of men and the financial well-being of women. [1]
Elder-law attorneys suspect that's among the reasons the proportion of people over 65 who list their marital status as "divorced" has risen nearly 60% since 1990, compared with an 8% rise in the proportion of divorced adults overall.[2]
The attorneys fear the trend may accelerate in coming years, at least in some states, because of changes in Medicaid laws that make it tougher to qualify.[2]
Other issues divorcing late stage baby boomers may have are ;Spousal support, Grandparents rights,
Guardianship, Minor children, Child custody, Child support, pension division, asset division, debt division and health care.
Posted here by baby Boomer attorney
Terry Bankert 1-810-235-1970
http://attorneybankert.com
Or http://dumpmyspouse.com
See:
[1]
http://www.articlecity.com/articles/relationships/article_1426.shtml
[2]
http://articles.moneycentral.msn.com/CollegeAndFamily/CaringForParents/ShouldGrandmaDivorceGrandpa.aspx
[3]
http://www.google.com/hostednews/ap/article/ALeqM5iPr5gSYc1Y_p9rJG0wkYWKADz_AQD9G3C1C82
[4]
http://www.sandiegoreader.com/news/2010/jun/02/cover/
[5]
http://www.cnn.com/2010/LIVING/06/02/al.gore.separation.40years.marriage/?hpt=Sbin
[6]
ICLE 5th Annual family Law Institute seminar “ When Senior Citizens seek Divorce” by Douglas G Chalgian, East Lansing MI 11/16/06 Presented
Posts
