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San Jose Divorce Lawyers Blog

Monthly Archives: March 2012

Smartphones Can Be Used as Evidence in Divorce Cases

Smartphones and Social Media grow more popular each year as a communication tool, but many people fail to realize that these innovations can provide vital evidence in a San Jose divorce. Pictures, videos, text messages, Facebook posts, and Tweets can all be used to settle arguments that would otherwise be a case of “he said – she said” in the courtroom.

You might think that proving adultery is why smartphone evidence would be relevant to a divorce case; however, California is a no fault State, and specifically excludes evidence of specific instances of misconduct. Nevertheless, you don’t have to be cheating on your spouse in order to find your smartphone the subject of a courtroom debate. Texts, Tweets, and/or Facebook posts about being frustrated with your child’s misbehavior could call attention to your parenting abilities. If you’re currently unemployed and seeking alimony, posts that indicate you spend a lot of time playing games on Facebook, or a picture of you after that long motorbike ride to Sturgis after you have claimed disbility based upon back pain, might suggest you’re not serious about finding a job. Anything relating to entertainment expenses or impulse purchases might be used to imply you’re withholding information about the state of your finances or possibly trying to hide assets.

Electronic communication can be legal to use as evidence in a divorce case. This includes communication to your spouse, and can include communication to your children or friends. Electronic communication is especially powerful as courtroom evidence because people will say things they don’t necessarily mean in the heat of the moment, and the messages can lack the contextual clues associated with other forms of communication. At the same time, the party seeking to enter the communication into evidence will surely argue that the communication shows what the other party really thinks and/or means, and that the unguarded nature of the communication makes it more credible than any guarded and/or attorney prepared testimony. It can be powerful stuff.  

It appears intrinsically ironic to a San Jose divorce lawyer that the Internet was first created as a military tool, and websites like Facebook have as their primary business model the gathering of useable information (presumably for marketing purposes), yet a huge proportion of the users of these innovations seem to have utterly forgotten what they are designed for. Riots in Iran, the fall of Mubarak in Egypt, and the unrest in Syria can all be directly tied to the passing on of information by websites, including Facebook and Twitter.  A competent San Jose divorce lawyer will certainly try to make use of these wonderfully effective informational weapons, and be aware if the issues raised by the Federal Stored Communications Act.     

The safest course of action for anyone considering divorce would be to stop using a smartphone and stop posting on Facebook and/or Twitter completely. However, many people dislike this option, because these innovations offer great convenience for both work and play. So, wise use of technology should be your goal.

A good San Jose divorce lawyer will advise you to picture a judge standing over your shoulder whenever you are posting anything on any website or using your smartphone. Do not send photos, videos, emails, or texts that you would be embarrassed to have introduced as evidence in a courtroom. Never send anything in the heat of the moment, and always take time to reflect on how your message might be interpreted by an outside party.

Is My Prenup Valid?

Prenuptial agreements are becoming increasingly common, but couples considering a San Jose divorce should be aware that these agreements aren’t always legally binding.

A prenuptial agreement should be in writing in order to be legally enforceable. An alleged oral contract will be very hard (almost impossible) to prove in a San Jose divorce court.

Informed consent is crucial to make a prenuptial agreement enforceable. If one of the parties was pressured to sign, the agreement may not be valid. This point is not absolute, however, since merely being unhappy with the terms of the written agreement does not mean the signer was under duress. Being under the influence of drugs or alcohol at the time the agreement is signed, or not being given enough time to adequately read the premarital agreement may also be reasons why it would be considered invalid in a divorce settlement.

A prenup that is found to contain false, incomplete, or deliberately misleading information is likely to be found invalid during your divorce. Actual lying and/or misleading information could be found to be fraud, which is a strong basis to set aside the prenup, if proven. You should talk with your San Jose divorce lawyer about what facts and details to include in your prenup.

Both parties need to have independent legal representation before signing a prenup. If they have the same attorney, a conflict of interest arises. If they prepare the prenup without the help of counsel it may not meet the legal formalities required and be of no effect. These points become especially important when there is a significant difference in the earnings and assets of one partner or if one person lacks the intellectual capacity to full understand his or her legal rights.

Prenuptial agreements can’t invalidate provisions of the law. For example, a prenuptial agreement can’t specify that one party would not have to pay child support if the couple decided to divorce. However, the courts can choose to simply strike the illegal portions of the agreement and enforce any of the other provision if there are no additional problems with the prenup.

Prenups can be legal even if they divide marital assets in a way that favors one spouse over the other. But a prenup could be set aside if the court considers the discrepancy to be grossly unfair. A contract is “unconscionable” if it means that one of the parties would face extreme financial hardship while the other prospers. “Unconscionable” contracts will not be enfoprced by the courts.

If you’ve signed a prenup and want to know if it will be considered valid during your divorce, this is an issue you’ll need to bring up at your initial consultation with your San Jose divorce lawyer. You should choose legal representation with experience in this specific area of divorce law in order to make sure you have the best chance of gaining a fair settlement.

Can You Date Before Your Divorce Is Finalized?

Should you start dating before finalizing your San Jose divorce? There is no one right way to answer this question. Some people do start dating before their divorce is finalized, but there are compelling reasons to wait as well. It’s up to you to make an informed decision regarding this aspect of your case.

Legally, there is no reason you can’t date before your divorce is finalized. California is a no-fault divorce State, so dating won’t lead to you being accused of adultery or finding your new lover named in your divorce papers. The financial resolution you get from the court, after a trial, should be exactly the same as what you’d receive if you weren’t dating.

However, if your ex is feeling hurt and rejected, news that you’re dating again will almost always make him or her less likely to agree to a settlement. Dragging on a divorce case out of simple spite is not uncommon. This can be time consuming and expensive, which is a very good reason for either avoiding dating until your divorce is finalized or being very discreet about your new relationship.

If you have children with your spouse, you may want to postpone dating for their sake. Even if they are old enough to understand that their parents have been unhappy for quite some time, most children still experience divorce as a stressful life event. Introducing your new partner too quickly can complicate the situation even further, which may make it more likely your child will have trouble sleeping, start acting out in school, or exhibit other signs of emotional distress. Allowing your children the time they need to process the change in their family structure will help ensure that the divorce does not have a long term negative impact on your relationship with them.

If you think that you married the wrong person, then rushing into a new dating relationship, while under the stress of unraveling the old, failed relationship, will be a lot like pouring gasoline on a fire — in an effort to put the fire out. It almost always fails to work out well. It is so common as to be streotypical that these dating while still in divorce relationships see the parties dating practically carbon copies of their soon to be ex spouse.  If your ex was a mistake, then why are you dating his/her clone? You should be careful.

Whenever you have questions about what behavior is appropriate when filing for divorce, it’s best to ask your attorney. A qualified divorce lawyer in California can explain the legal aspects of your case and offer tips to help make sure you get the most favorable settlement.

When Can Courts Deny Visitation?

When going through a divorce in Santa Clara, parents often have questions about the rules surrounding child custody and visitation. Generally, it is difficult to have the courts refuse to grant a non-custodial parent any visitation privileges. It is thought to be in the child’s best interest to have a relationship with both parents if at all possible.

A parent suffering from a mental illness will not automatically have his or her visitation rights denied. The same rule applies for a parent who is known to abuse alcohol or drugs. There needs to be specific evidence that the parent’s conduct poses a risk to the child’s safety. Even a parent who is currently incarcerated will not automatically be denied all visitation rights. Supervised visitation is the most common solution for these types of issues. Supervised visitation means that a trained social worker or other professional with experience in child custody disputes will be present during the non-custodial parent’s scheduled visitation times.

Non-marital sexual relationships are not considered grounds for denying visitation, regardless of how you feel about your ex’s new lover. Overnight visits may be denied if the court feels the relationship has an adverse impact on the child, however.

Stuttering, bed wetting, sleep disturbances, poor school performance, and other signs of emotional difficulties can be considered reasons to limit a non-custodial parent’s visitation rights, although a professional assessment will likely be needed to determine if visitation is contributing to these issues. Many children have trouble adjusting to a divorce regardless of visitation schedules.

Lack of employment does not mean a parent can be denied visitation rights. Payment of child support and visitation privileges are two separate issues in a divorce proceeding.

Worries about child abduction can be grounds for denying visitation if there is evidence your ex is considering taking your child. It is more likely that the court will order supervised visitation or visitation that takes place in a public location, however.

Courts will sometimes consider a child’s wishes in determining visitation rights for non-custodial parents, although this depends on the child’s age, his or her maturity, and other factors affecting the case. A divorce lawyer with experience in Santa Clara family law can provide additional insight into this issue.