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Beware, Beware, Be a Very Wary Bear… Protect your privacy in this digital age.

Several years ago I had a client who was normally very careful about such things.  Her phone was password protected, as was her tablet.  Ditto her laptop.  She had changed her passwords after starting her divorce.  Then one day while her ex was picking up the kids she set her phone down on the kitchen counter after using it and, before it shut off, turned away for a few moments.  Her ex grabbed it and bolted away.  He forwarded email to his email, including some pictures that were… incriminating… as well as email he shouldn’t have seen.

It created real problems in a nasty custody battle that took months to undo.  All because of a moment of what really cannot be called carelessness.  Who would have thought he would grab her phone in the few seconds before it shut off?  It created a great deal of heartache and embarrassment as well as legal trouble.  He was a supreme jerk, but I’ve added this to my list of warnings I give to new clients.

Spouses often do not realize how much their partners know about their online accounts.  Your ex may well know your regular passwords, and even if you open up a new bank account, if you’ve used the same password and login (“SuZZYQ1234%”, “Yosemite!1993”) for everything since 2003 they may be able to access every new account you open.  Sometimes if they inherited the computer it will have conveniently stored your passwords and will fill them in for them, allowing them access after you leave to bank accounts, email, social sites, even Netflix.  Creepy AND potentially disastrous.

When you separate from a partner, you need to make a serious break with the old.  Get a new email account (there are plenty of free ones available, from Gmail to Yahoo to your internet provider).  Choose login information that you’ve never used before.  Use the lock codes for all of your electronic devices, and keep an eye on them; get in the habit of shutting them off when you use them rather than setting them down and letting them shut off on their own.

Be cautious about tweets, emails and social site postings.  Divorce lawyers view these as gold mines.  That funny picture of Dad passed out at a party with a bottle in his arms his buddies took is great for laughs but the judge may not find it so funny in a custody case.  The picture of you cavorting with two brawny young half-naked youths half your age may not be probative but may be prejudicial and you can’t make the judge’s mind forget what her eyes saw.

I have had clients defend their incriminating Facebook pictures by saying “I unfriended my ex and all her friends.  No way she will see these pictures”  That doesn’t mean some well-intentioned friend won’t pull a picture and send it to the ex in an effort to gain revenge for you and say, “See how much fun my buddy is having now that he is free from you?”

The rule of thumb in any family law proceeding is that you must be prepared for the judge to see anything that you post online, tweet, email, Snapchat, etc.  These digital communications give us the dubious option of immediate communications and sharing universally that which previously would never have happened, as the time it would have taken to put us in the position to share (and the limited circle of friends we could share it with) would have either given us the wisdom not to share it or would have limited the damage.  Showing a picture to some friends to laugh about at work is not the same as posting it online where millions can copy and preserve it forever (and show a judge…).

By the way – the picture of the guy passed out drunk posed with the bottle by friends on his Facebook page?  I used that in a child custody case quite effectively.

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Documentation, Documentation, Documentation

In real estate, as the saying goes, only three things matter – location, location and location. My house is literally on the border line of two counties; if it was across the border, it would be worth tens of thousands of dollars less. If it was in Marin County, it would be worth hundreds of thousands of dollars more.

In family law, in divorce, what will generally make a difference in you getting what you want is how well you can document your claims at every step of the process. Whether you are negotiating directly with your spouse, working with a mediator, or litigating with the judge, the documents you produce will be critical.

For most people, this requires a shift in thinking. During marriage we generally don’t worry about documenting conversations with our spouses or agreements we make with them, or keeping records of what we spend on the kids. After separation such things are very important.

The worst thing that you can get into before a judge is a she said/he said argument. This is where one side maintains one position, the other side maintains another position, and the judge has to decide which side to believe. Of course you are telling the truth, and the judge should believe you… but why should she? Sometimes if there is a history in the case the judge will have formed an opinion of both parties and have reason not to believe your spouse, but that can go both ways. Sometimes your position may appear more plausible. But sometimes it will be easier for the judge simply not to take sides and split the difference down the middle, or reject the issue altogether and tell you to work it out between yourselves.

You always want to have pieces of paper supporting your position to hand the judge (or mediator) so they do not have to rely solely on your word. A claim that you paid for something is much easier to make if you have a canceled check to back it up. A claim that you agreed to something is easier to make if you have an email showing that you agreed to it.

Your attorney will ask you for a lot of documentation. Provide it to him or her quickly. If they have to keep asking or have to get it themselves it will cost a lot more money. You may not understand the need for all of this documentation, but the attorney is the expert. They will not ask you for “busy work.”

Keep your communications with your spouse, wherever possible, in writing. This can be email (best) or text messages. Never delete these text messages, and backup your phone frequently. There are cheap programs to download your text messages to computers which are worth investing in; for under $10 you can guarantee a lost or crashed phone does not cost you valuable text messages which document important communications you may need to prove something related to support, custody or a large asset like your community property home.

If you have a phone conversation, follow it up with an email or text message summarizing the call: “Just to summarize our recent conversation, we agreed that you will be picking up Sally at 6:30 PM this Friday instead of 5:30 PM because you have to work a little later.” These things may not seem important at the time, but may be very significant later and you will be sorry that you cannot document them contemporaneously but are left with “Well, there were lots of times I had to change the schedule to accommodate her being late…”

Documentation can be as simple as keeping track of things on a calendar. I had a client keep a calendar in his kitchen where he recorded things related to visitation – late pickups, canceled visitations, when his 2-year-old was not fed or bathed when returned, etc. Individual instances were meaningless, but when he recorded contemporaneously dozens of instances and showed the actual calendar to a judge along with the summary data it was compelling.

Always give copies of important papers you get to your attorney. If you get a letter from a credit card company indicating your spouse is using a credit card you didn’t know you had, make a copy immediately and give it to your attorney. If you discover a document in the house that you think is interesting, let your attorney be the judge of how significant it is.

Ideally, you want to be able to have a piece of paper to support every claim you make to a judge. This won’t always be possible, but if you can support 90% of your claims, and your spouse does not bother to support any of his claims (as many do), then the judge is much more likely to accept your position on the remaining 10% of your positions. It is surprising the number of divorce attorneys who simply appear in court prepared to talk their way through cases. As a general rule (not always, but generally) if you come prepared with documents supporting your positions you will achieve outcomes closer to your positions than if you come with a smile and a story.