Careful what you text!

Americans have learned to carefully craft their Facebook postings, and edit and spell-check e-mails. But apparently we don’t give text messages much thought, and they’re providing abundant and effective fodder for divorce attorneys.

“A lot of people will draft a text at the spur of the moment, feeling hot and bothered about something, and off goes the text message” says Ken Altshuler, president of the American Academy of Matrimonial Lawyers. “But it’s the same kind of written documentation that lawyers just love to go to town on.”

In a recent survey, more than 80 percent of the academy’s members reported an increased use of text messages in court. And Altshuler says once your words are in print, they’re hard to disown.

“I have one husband, frankly, who said in a text message, ‘I’m so angry at you right now I could kill you,'” Altshuler says. “He got charged with criminal threatening.”

Tips For Keeping Your Texts Out Of Court
Attorney Ken Altshuler has this advice for anyone going through a divorce.

Don’t write (text, Facebook, email, etc.) anything you wouldn’t want a judge to see.
If you’re receiving inappropriate messages from your spouse, don’t respond inappropriately, because a judge will see that.
Don’t send messages that clearly set your spouse up for an inappropriate or angry response.
If you’re worked up and want to send your spouse a message, take time to calm down before putting anything in writing.
Just as with anything we say, these little missives can be taken out of context. But they can also reveal a stark truth. Altshuler says they have become key to cross-examination as a powerful way to undermine someone’s credibility. Consider one husband’s text to a secret lover that came out in one of Altshuler’s cases: “We had a great time in Boston, I can’t wait to see you again.”

“Of course, you know, the person in that case said he was on a business trip in Denver,” Altshuler says.

In one custody battle, Altshuler says a text message single-handedly won the case. The mother claimed the father’s drinking problem compromised his parenting. But the father was an excellent witness. He said he hadn’t had a drink in a year, and even his substance abuse counselor vouched for him. It was a classic case of “he said, she said,” until Altshuler’s client displayed a recent text from her husband asking her to pick up beer on the way home.

“He sat there and stared at the text message for about 2.5 minutes,” says Altshuler. “He had no answer. Case is over.”

A Treasure Trove Of Information

Stephen Ward is a private investigator with Pinkerton Consulting and Investigations. He says as technology improves, so does the potential for texts as evidence.

Teen Texting Soars; Will Social Skills Suffer?

“Some people have text messages that go back years. It depends on the size of the phone,” Ward says. “If you actually look at cell phones now, the size of the phone’s memory is what most standard desktops were about two to three years ago.”

It’s a treasure trove of information, he says. But getting texts into court as evidence can be tricky, especially if it’s a spouse’s texts you’re after. If you’ve stolen a password to access them, they can be ruled inadmissible. And if they’re on a company phone?

“You could be looking at things that are trade secrets, that you’re not entitled to see,” Ward says. “It’s actually corporate property, it’s not yours, and you’ve done something completely illegal.”

Ward says it’s always best to let a lawyer subpoena a spouse’s texts.

But even using messages from your own phone isn’t always a sure thing. Lee Knott tried to submit texts from her ex-husband during a custody battle. She used an app to send them to her email account.

“And so each text message, even if it was only four words long, ended up taking a page,” she says. “So that’s hundreds of pages.”

Knott says she got the sense the judge, in a rural part of Washington state, was overwhelmed and wary.

“The judge said that he didn’t understand the technology, and that he could not be certain that it wasn’t able to be tampered with,” she says.

In fact, some states only accept electronic evidence if it’s been gathered by a professional.

Lawyers love getting their hands on these smoking gun texts. But for their own clients, they have one overriding piece of advice: Don’t write anything you don’t want a judge to read.


Social Media Statistics

How Family Law Attorneys Use Social Media Evidence in Court Cases [infographic]

Posted on April 03, 2012 by David

The infographic, “How Family Law Attorneys Use Social Media Evidence in Court Cases,” provided by Dishon & Block Family Law Attorneys, illustrates how lawyers are turning to social media sites like Facebook, Twitter, and Flickr to help them identify “smoking gun” evidence for their cases.


Things You Should Never Say To Your Divorce Lawyer

Posted: 03/12/2012 3:10 am

I have specialized in family law for over 40 years. I have seen almost every possible scenario, and I would like to share some things clients have said to me that often are better left unsaid. Here are some things you should never say to your divorce lawyer. In no particular order, they are as follows:

1. I don’t care what it costs, I would rather give you everything than give anything to my wife/husband. The reality is that no matter what you pay, you are going to give something to your spouse. Things said in anger or in the heat of passion will be taken back later. This is especially true when a client receives my final bill. You may want revenge, but that rarely happens in a divorce. It is better to spend your hard-earned money on your family, for your children’s college education, or a vacation. Divorces are expensive enough, both economically and emotionally, without adding revenge to the equation.

2. I would like to bring my “friend” with me to the interview. We have attorney/client privilege, and once you bring a third party in, whether it’s a relative, a lover or whoever, the attorney/client privilege is gone. Unless a third party is officially associated with your case, there is no attorney/client privilege. If a friend or lover is in a meeting, and the case gets nasty, in the event a deposition or trial ever occurs, there is no privilege and all these secrets can spill out in a deposition or in court.

3. My friend or neighbor has told me to do this … There is nothing worse than having all your friends and relatives — who mean well — give you advice. Every divorce is different. Every divorce is unique. What makes sense for your friend and relative may make no sense for you. In addition, people often tell you only part of the story. You often get a lot of misinformation from well-meaning friends and relatives. Think about this: There are at least five variables in every divorce. The first is you — your personality, your reasons for wanting to save or end the marriage. The second variable is your spouse — his/her personality and motivations. The third is your attorney — the attorney’s personality, motivations and experience. Fourth is your spouse’s attorney. And last but not least, the fifth variable is the judge. Change any of these people and variables, and you may get a different result. For these reasons, sideline quarter backing is often very detrimental to your divorce.

4. I’m in a hurry to get this over with. Saying this immediately puts you at a disadvantage. Compromise is critical in any divorce. It is also necessary to come to a resolution. If you let your spouse know how desperate you are, and the other attorney knows that as well, then the divorce is going to cost you a lot more and you will regret it in the future. I was in court this past week on a case where my client had been in a hurry to end the marriage because of a new relationship. I have seen these scenarios time and again. In this case, the relationship is lasting, but my client has a lot of regrets and remorse over the fact that she sold herself out for far less than she might have been entitled to if she had not been so desperate to end the marriage. Don’t rush. A divorce is one of the most critical events in your life, and while it is important get it over with, hurrying can be very costly. You do not want to have regrets once the divorce is final.

5. I’ve been promised that I will see the children more and pay less. I just have to sign the papers. Be careful. There is often a hidden motive behind a promise, and if someone told you this — especially if this is a hotly litigated case — there is often a hidden agenda. Remember, there is no Easter Bunny, and someone who is pushing you to sign the papers too quickly has something up his or her sleeve. This is where it is important to make sure that your attorney fully understands all the aspects of the case and is there to protect you and advocate for you where necessary.

6. Showing your biases and prejudices. I’ve had clients who will come to me and start using racial, religious or ethnic slurs. I think it’s wrong. I think it also shows something about the person that is highly unattractive.

7. Never say never. Never say that you will not pay any spousal support. Never say that your spouse can have everything. Never say that your spouse is going to get nothing. Never say that you are going to leave your children. Every case has an upside and downside, but saying “never” is the worst thing that you can do. There are exceptions to every rule, especially in a divorce situation. Keep an open mind. Remember that your attorney is there to counsel and advise you and help you go forward as you try to rebuild your life.

What are some other thoughts that you have as to things you should never say to your attorney? Share them with us.

Family Law Attorney & Legal Correspondent
40900 Woodward Avenue, Ste. 111
Bloomfield Hills, MI 48304-5116
248/594-3444; Fax 248/594-3222

Swearing in!

Congratulations to Judge Mark Barcus on being sworn in this afternoon at the Tulsa County Courthouse.  Congratulations on his appearance last night on OETA “Ask a Lawyer as well.  I saw a lot of friends on their answering questions.  It has been about five years since I volunteered and was on television.  May be time to do it again!

My First Entry

I have wanted a blog of my own since I first heard the depressing sounding word! And now I have it! One more thing I can mark off the list. Of course, there is still become rich and famous and world domination on the list, but I am getting there!


The iPad for Litigators

The new iPad is out today! The new iPad is out today! The new iPad is out today! OK, that may not be as funny as Steve Martin’s screams about being in the new phone book in The Jerk, but a lot of people are really excited about the new and improved iPad released today.

Trial lawyers are also pretty excited about the iPad. With great apps for trial presentation and preparation and a very simple interface, lots of lawyers are successfully using iPads in the courtroom for jury trials and other types of hearings. iPad for Litigators is the topic of the 53rd Edition of the Digital Edge podcast. Our guest is Tom Mighell. Tom blogs about the iPad in the legal community at iPad 4 Lawyers. Tom is the author of the book iPad in One Hour for Lawyers and the author of the newly announced book iPad Apps in One Hour for Lawyers. Tom and I have done several programs about lawyers using iPads in and out of the courtroom. So my co-host, Sharon Nelson and I chat with Tom about how trial lawyers use iPads. It turned out to be a pretty good podcast if I do say so myself and the show notes have links to the apps we discussed as well as a link to purchase the archive of a CLE presentation Tom and I did through ALI-ABA with trial lawyer Jamie Moncus.

I hope you can listen to our podcast on The iPad for Litigators.



Discovery in Divorce cases


Resolving a divorce requires a lot of information. The process of exchanging information and documents is formally known as “discovery.” Our courts have issued rules that litigants must follow when requesting discovery and responding those requests. The discovery rules include deadlines for answering requests and procedures for resolving conflicts when litigants do not produce all that is asked of them. Discovery can be a major headache for divorcing spouses. No one has the time and energy to locate and organize hundreds of pages of documents, or answer dozens of questions, but it can be a crucial step in the divorce process. Here are my tips for divorcing spouses who are facing a discovery request:

  1. Don’t wait. When facing any large task, it is tempting to procrastinate, but waiting only adds to the mental pressure. Generally speaking, most discovery requests must be answered within thirty days. The answer must be formatted by your lawyer to comply with the procedural rules, so in actuality, you should provide the information and documents to your lawyer in less than thirty days. Start by reading the request from beginning to end, considering whether you have the information and documents to answer each question. Make a note of the information that you need to gather from storage, accountants, financial institutions, or other sources. Contact those sources early so that they will have an opportunity to obtain the information and documents that you will need.
  2. Understand the objections. When answering a discovery request, the rules allow respondents to raise objections to some of the requests if appropriate. Generally, the objections falls into three major categories: (a) the request is too broad or remote; (b) the information is privileged or irrelevant; or (c) the information is unavailable. Communicate your objections to your lawyer upon your initial review of the request, so that your lawyer can frame your objections in a legally-recognized way or explain why you may have to answer some requests that you object to.
  3. Share the information. It may be time-consuming to answer questions thoroughly and gather documents, but it is worthwhile. If you litigate the case, then your lawyer will need information and documents as evidence in court; and if you do not produce the documents and information that your spouse has requested in discovery, you cannot use it yourself in court. Even if you settle your case, the discovery documents and information will be useful. Settlements generally require “full and fair disclosure,” which means informed consent. If you have not exchanged information and documents in discovery, your spouse might be able to challenge the validity of your settlement later, due to lack of full and fair disclosure.

Discovery is one of the most significant mileposts on the journey to resolution of a divorce. Without complete, accurate information, it is nearly impossible to settle or litigate child support, division of marital property, or other financial issues in divorce. Information is not useful if it is locked in your head. Share it with others through discovery.

Common Law Marriage

Oklahoma is one of only a few states to recognize common law marriages. But it’s not as common as it might seem.

Are my lover and I common law spouses after living together for six months?

Not on that basis alone. Common law marriage may have more myths associated with it than perhaps any other area of family law. The fact is, the existence of a common law marriage in Oklahoma is hard to prove. Cohabitation, using the same last name, combining finances, jumping over broomsticks at a party, and other actions said to establish a common-law marriage are just pieces of a much larger puzzle. By themselves, they mean nothing.

How does one prove a common law marriage?

Most marriages are established by following statutory procedures. They are commonly called ceremonial marriages, and the spouses who use the legal procedures are considered officially legally married. Oklahoma is one of only a handful of states (8 at last count) to recognize consensual non-ceremonial marriages. These are called common law marriages. They are formed by the consent of the parties who enter into the marriage, without meeting all the state requirements, such as a ceremony or a license. Common law marriage is a combination of state of mind and particular actions.

Oklahoma case law sets forth a five-part test to establish a common law marriage:

  • An actual and mutual agreement between the spouses to be husband and wife;
  • A permanent relationship;
  • An exclusive relationship;
  • The parties to the marriage must hold themselves out publicly as husband and wife, and;
  • Cohabitation as man and wife (There is actually a split of authority on this particular standard).

The party asserting a common law marriage must prove all of these elements by clear and convincing evidence. Relevant evidence would include joint income tax returns, joint financial accounts, jointly held assets, joint credit, medical records, insurance records, introductions and comments to third parties, hotel receipts, and any number of other forms of documentation. If clear and convincing evidence is missing as to any part of the above referenced test, the claim of a common law marriage will fail. Obviously, each common law marriage case is determined on its own facts.

Common law spouses who want to end their relationship must use the courts to get divorced, just like people who are legally married under state law.


By Tulsa Attorney David Tracy.