Wednesday, August 15, 2012

A Funny Thing About Facebook...


     A funny thing about distilling the various thoughts, antics, and events of your day into words which you then post on Facebook is that such confessions to your Facebook friends might just land you in jail.  By way of example, I direct you to this little gem of a story about a mother who recounted shaking her baby to death in posts to her Facebook page @ http://hamptonroads.com/2012/08/mom-busted-facebook-enters-plea-babys-death.

     Facebook is not a confessional, though many of us are guilty of using it as such on occasion.  For most of us, these momentary lapses in good judgment are merely embarrassing in retrospect.  However, if they involve legally actionable or criminal conduct, then you may have a major problem on your hands.  Unlike the sins that we may recount to a priest in a confessional, there is no legally cognizable privilege that can be asserted with regard to a Facebook post. 

     Fine, you have marked your Facebook post as viewable by “friends only”, rather than as “public”.  All this does, however, is place your Facebook post on par with a note or a letter that you have passed to a friend.  Unless that friend happens to be your priest or your lawyer (or, in certain situations, your spouse), it is not a “privileged” communication that is legally protected from disclosure.

     Thus, if your Facebook post describes your efforts to poison your spouse, how exhausting it was to beat your child to death, or how you were so drunk last night that you don’t even remember driving home and your “friend” finds this disturbing, they may feel compelled to print out a screen shot and deliver it to the local police department.  No privilege has attached to this communication and your “friend” is completely free to take such action.

     In order for law enforcement to search your computer or access all of your online missives through Facebook directly, a search warrant will be required.  However, armed with a copy of the Facebook posts that have been provided to them courtesy of an online “friend” you have “shared” with, the ensuing search warrant that will invariably result should not be at all difficult for law enforcement to obtain.

      So, as a general rule of thumb, prior to “sharing” information with anyone who is not your priest or your lawyer via any mode of communication, pause for a moment and consider whether it is something that you want to be discussing as part of a court case against you.  If not, then erase, erase, erase, hit “cancel”, “log out”, and step away from your computer or mobile device!

     While that may all sound tongue-in-cheek, as well as obvious, the reality is that almost everything that we say or do may be used against us unless it falls within one of a handful of narrow, limited exceptions that the law recognizes.  The two most common and most widely misunderstood types of exceptions are (i) privileged communications and (ii) the right against self-incrimination.

     In order for a communication to be privileged and, thus, protected from disclosure, it must first be a communication.  A communication can be oral or in writing, which includes a tweet, a text, an email, a Facebook post, a notation on a calendar, or even a diary entry.  In some instances, a communication may even be non-verbal (or silent communication) if it is purposeful and done with the intent to convey information, such as rolling your eyes in some exaggerated fashion or making a hand gesture. 

     However, as a general rule, actions are not communications and, therefore, no privilege attaches.  So, if you confess to your priest that you stabbed someone in the parking lot of a bar last night, that is a protected communication.  If, on the other hand, your priest is standing next to you in the parking lot when you stab someone, then the action of the stabbing witnessed by your priest is not a communication and the priest can be compelled to testify as to what he saw.

     If it is a communication, then the question is to whom was the communication made and is there a privilege that the law attaches to that particular relationship that would protect it from disclosure.  There are only a few such relationships and, even within the context of those relationships, the privilege is not absolute. 

     The privilege primarily applies to communications between priest-penitent, doctor-patient, attorney-client, and husband-wife.  Again, these privileges are not absolute and some may only be asserted by the recipient of the communication (such as in the case of a clergyman under Virginia law). 

     If you burst out with “I can’t believe I just stabbed that guy” while your doctor is stitching you up in the emergency room, that statement is probably not protected.  If you disclose to your therapist that you intend to poison your husband at dinner, your therapist probably has a legal duty to report this to the police.  If you tell your attorney that your husband never actually beat you, as you have alleged in your divorce case, and that you only made these claims to ensure that you got the kids and the house, then you will have seriously impaired your attorney’s ability to present “your case”, at a minimum.

     The privilege between spouses is more tenuous and complicated than the other types of privileges and it is one that is far from absolute.  Without chronicling all of the exceptions, the most important one to be aware of in the context of family law is that there is no privilege to assert in an adversarial proceeding against the spouse.  Once you are on one side of the “v.” and your spouse is on the other side of the “v.”, it is a fair bet that any statements you have made to your spouse during the course of the marriage may not be protected from disclosure on the basis of privilege.  There may be other exclusionary rules that could be applied, but “privileged communication” is not apt to be one of them.

     There is no privilege between parent-child, siblings, extended family members, or best friends, at least not in the Commonwealth of Virginia where I practice law.  So, if you had a marital indiscretion and you do not want your sister or your best-friend to be summoned to testify against you in a subsequent divorce case, then do not confide this information to them in the first place.

     It is also worth noting that there is no privilege in communications with one’s self, such as a diary.  So, if you fantasize about poisoning your spouse or you have committed a marital indiscretion, it is probably best not to memorialize these tidbits of information in your journal.  If journaling is a necessary exercise for you, then I would suggest burning it as soon as you are done.

    With regard to disposal of diaries, calendars, journals, emails, photos, videos, records, and other “evidence”, a duty to preserve all such evidence attaches once litigation is reasonably anticipated.  Failure to do so can result in some fairly hefty sanctions, both monetary and non-monetary, including barring you from presenting evidence at trial.  Once you walk into the attorney’s office to discuss your impending separation/divorce, it is arguably a little too late in the process for your attorney to instruct you to burn all of your diaries in the backyard.

     To dispel another common misconception, the protections set forth in the U.S. Constitution apply to the actions of the government with respect to the individual, not to actions between individuals.  Over the course of time, some of these constitutional protections have been extended in limited ways into other areas through legislation.  So, for example, an employee may have some limited free speech rights, rights to privacy, and rights against search and seizure with respect to their employer.  However, these rights and protections do not derive directly from the Constitution, unless the employer is “acting as an agent of the government.”

     With specific regard to the right against self-incrimination (i.e., “taking the Fifth”), this right only protects the individual from being forced to give testimony that may reasonably result in criminal prosecution/criminal liability.  If the conduct being inquired into is merely embarrassing, not criminal, then there is no such immunity.

     In the context of a civil proceeding, such as a divorce case, this privilege may be invoked in response to a question at deposition or trial such as “Isn’t it true that you beat your wife/molested your child/had sex with that other woman/filed a fraudulent tax return last year?”  The privilege does not apply to past statements, posts on Facebook, confessions to a friend, or matters that could not reasonably lead to criminal prosecution or criminal liability.  There may be other evidentiary rules that could be asserted to prevent disclosure, but “taking the Fifth” is not one of them.*

     Depending on the laws of your particular state, it may be perfectly legal for your spouse to tape record conversations that you are having with them, to video tape almost anything with or without your knowledge (provided there is no audio), to access your emails (unless you have properly protected your passwords), and to access and copy your computer files if stored on a common or “household” computer.  If your passwords are plastered across your computer on little pink Post-It notes, remove them now.

     Messages left on a voice mail or answering machine are fair game, as are text messages and emails that you send to your estranged spouse.  Posting to Facebook is the equivalent of walking into your favorite neighborhood restaurant, standing on top of the bar, and shouting it out to a hundred witnesses who may be forced to testify against you later.  If there are photos to accompany your Facebook confessions, please reconsider before clicking the “upload photo now” button, and keep your videos off of You Tube!    
                
* As a technical aside, the Fifth Amendment privilege applies to actions by the federal government.  It is the Fourteenth Amendment that extends this privilege to state court actions.  So, unless there is also a federal law against adultery (which, to my knowledge, there is not), then the correct privilege to assert is the Fourteenth Amendment.  As a matter of practice, however, I usually instruct clients to assert both.

DISCLAIMER:
This site is not intended to provide legal advice nor should any content or correspondence provided herein be construed as forming an attorney-client relationship. All content is intended as general information and/or for entertainment purposes. The attorney responsible for the content of this site is only licensed to practice law in Virginia and the District of Columbia and no content provided on this site is intended as nor should be construed as the practice of law in any jurisdiction in which said attorney is not authorized by law to practice. Should you require legal advice or representation, please contact an attorney authorized to practice law in your jurisdiction.

© 2012 by Jennifer E. Mandell.  All rights reserved.


Thursday, August 2, 2012

BET YOU WISH YOU HADN'T DONE THAT!


Mastering the fine art of self-editing and the ability to exercise a healthy dose of self-restraint at all times are important assets to have in life. 

Case in point in today’s “Bet You Wish You Hadn’t Done That” segment is the story of Ms. Parham, who represented herself in a child custody case (this being her first mistake). Being extremely displeased with the court’s ruling, Ms. Parham “expressed” herself by crumpling up the court’s custody order in front of the judge. 

The court’s response was to summarily hold Ms. Parham in criminal contempt of court. The contempt finding was upheld by the Richmond City Circuit Court and affirmed by the Virginia Court of Appeals in Parham v. Commonwealth, Va. Ct. of App., Record No. 1528-11-2 (July 31, 2012). 

The moral of this story is that it is not generally a good idea to vent your frustrations or anger in the presence of the judge. If proper venting necessities some form of destruction of the court’s order, then the better practice may be to hold off until you get back to your vehicle.

DISCLAIMER: This site is not intended to provide legal advice nor should any content or correspondence provided herein be construed as forming an attorney-client relationship. All content is intended as general information and/or for entertainment purposes. The attorney responsible for the content of this site is only licensed to practice law in Virginia and the District of Columbia and no content provided on this site is intended as nor should be construed as the practice of law in any jurisdiction in which said attorney is not authorized by law to practice. Should you require legal advice or representation, please contact an attorney authorized to practice law in your jurisdiction.








TYPOS ARE ALIVE AND WELL AND LIVING ON MY TWEET DECK

     When the personal computer first began nestling itself comfortably into everyday American life, I was sporting “big hair”, wore leggings with skirts, and listened to a lot of Bon Jovi.  While the PC in its many modern day iterations continues to thrive, I am happy to report that the big hair and leggings have gone the way of the dodo – though I do still listen to Bon Jovi from time to time.

     As the PC industry matured, we were introduced to such handy software features as spell check and grammar check.  So, if I forgot everything that I learned in fourth grade English and my grammer was wrong, my computer would auto-correct it for me.  Of course, it was never meant to be a substitute for human proof-reading.  However, it did offer the possibility that our old nemesis, “the typo”, might one day be eradicated from existence.

With the birth of social media and its rapid encroachment into almost every aspect of our daily lives, written communication must now be done at lightening speed just to be relevant.  With these newer, ever more rapid, modes of instantaneous communication on a mass scale, the typo is experiencing a bit of a renaissance.   In my own nostalgic way, I am kind of glad.

While I am mortified to see typos in my own tweets and posts, especially when committed by my online professional persona, an unfortunately placed typo in other people’s communications always did give me a good chuckle.  Since I myself seem completely incapable of delivering a typo-free tweets or posts (case in point), I hope that my little social media slip-ups similarly bring a smile to someone else’s day.

My favorite typo of the day today came in the form of a tweet.  So as to not cause embarrassment to anyone, all references to the tweet source have been purposely omitted.  The tweet read as follows:  “If you have had gun surgery we have postoperative instructions to answer your questions.”  Of course, no amount of spell checking or grammar checking by a computer program probably would have caught the particular error that happened here.

To the author of my favorite tweet of the day, thank you for giving me a chuckle.  May the typo live long and prosper.   

DISCLAIMER:
This site is not intended to provide legal advice nor should any content or correspondence provided herein be construed as forming an attorney-client relationship. All content is intended as general information and/or for entertainment purposes. The attorney responsible for the content of this site is only licensed to practice law in Virginia and the District of Columbia and no content provided on this site is intended as nor should be construed as the practice of law in any jurisdiction in which said attorney is not authorized by law to practice. Should you require legal advice or representation, please contact an attorney authorized to practice law in your jurisdiction.





Thursday, November 3, 2011

Q & A: Relocating with Child Out of State

Q: I am moving to washington state, I have a two year old son in which I raise alone and the dad comes in and out as he pleases, neither of us have custody. If we have it written up and notorized that he's aware and ok with me moving with our son will that hold in court if he tried to press charges for kidnapping?

A: I would recommend contacting a Virginia family law attorney to advise and assist you in drafting a formal child custody & visitation agreement to be executed by you and the child's father prior to you and the child relocating out of state. Depending upon the specific circumstances of your situation, the attorney might also recommend that child support issues be addressed in the agreement and, depending on your current marital status, may make additional recommendations regarding support and division of debts and assets.

Courts generally will accept an agreed upon arrangement between the parties regarding custody, visitation, and child support and such a written agreement can be submitted to the appropriate court for incorporation into a court order. However, nothing precludes either parent from challenging the agreed upon arrangement in the future based on a change of circumstances.

To receive notice of future LawHelp postings, you can also follow on Twitter at http://twitter.com/MandellLawHelp.


DISCLAIMERS:
This site is not intended to provide legal advice nor should any content or correspondence provided herein be construed as forming an attorney-client relationship. All content is intended as general information for educational and/or entertainment purposes. The attorney responsible for the content of this site is only licensed to practice law in Virginia and the District of Columbia and no content provided on this site is intended as nor should be construed as engaging in the practice of law in any jurisdiction in which said attorney is not authorized by law to practice. Should you require legal advice or representation, please contact an attorney authorized to practice law in your jurisdiction.

Q & A: Contesting a Divorce

Q: i want to contest the divorce because i dont want a divorce.

A: Ultimately you cannot prevent your spouse from obtaining a divorce in Virginia. However, you do have a right to contest any facts alleged in the divorce pleadings that you genuinely dispute, as well as the right to affirmatively state that you do not desire a divorce, as part of your responsive pleadings to the complaint for divorce filed by your spouse.

The burden will be on the person seeking the divorce to prove the facts that support the grounds upon which they are seeking a divorce be granted. If the basis for the divorce is "no fault" (i.e., having lived separate and apart, continuously, without cohabitation or reconcilliation, for a period in excess of one year, with the intent on the part of at least one party to the marriage that the separation be a permanent one and at least one of the parties desires that a divorce be granted), then the proof required by the court is pretty minimal and only requires the testimony of the party seeking the divorce and one corroborating witness.

Even though the divorce would be granted over your objection, you can have your objection noted on the final decree of divorce or have the divorce decree include a statement that basically states that the divorce is being granted over the objection of wife/husband (as the case may be). Again, this will not prevent the divorce from becoming final or alter the validity of the divorce, but might make you feel a little better to see that language included in the divorce decree. Courts have allowed me to include these types of objections in final decrees whenever I had a client who objected to the divorce on moral and/or emotional grounds in the past.

Please note that your answer to the complaint for divorce, as well as any affirmative relief you are seeking, must be filed within 21 days after the complaint is served on you. Please also note that, despite your objections/contest to the divorce, it is important that you protect all of your legal interests and request the court to award you any and all relief to which you may be entitled should a divorce be granted. Such rights may include, but not be limited to, temporary and permanent spousal support (or reservation of right to same), exclusive use of the marital residence, maintenance of health and/or life insurance, payment of maritals debts, distribution of marital property (including retirement accounts, pensions, or other retirement benefits), attorney's fees, and determination of custody/visitation/child support if you have minor children and/or any disabled adult children.

In order to ensure your rights are protected, I recommend that you consult with a Virginia family law attorney as soon as possible.

To receive notice of future LawHelp postings, you can also follow on Twitter at http://twitter.com/MandellLawHelp.


DISCLAIMERS:
This site is not intended to provide legal advice nor should any content or correspondence provided herein be construed as forming an attorney-client relationship. All content is intended as general information for educational and/or entertainment purposes. The attorney responsible for the content of this site is only licensed to practice law in Virginia and the District of Columbia and no content provided on this site is intended as nor should be construed as engaging in the practice of law in any jurisdiction in which said attorney is not authorized by law to practice. Should you require legal advice or representation, please contact an attorney authorized to practice law in your jurisdiction.

Q & A: Effect of Disability on Spousal Support

Q: Can the fact that my husbands mental disability has affected me help in court?: My husband and I had a wonderful marriage for 30 years. 11 years ago he was diagnosed as 70% mentally disabled, 30% unemployable...= 100% disability from the Veterans Administration. Since he has been diagnosed,he's changed and I have been in counseling for those 11 years due to depression from how he lied to me to make me feel guilt for things he's done, his emotional detatchment, etc. I have been an out patient in a psychiatric hospital due to depression caused by him. If/when he files for a divorce can I use that against him to try to get more support. I worked full time up till 11 years ago, then my major depression became disabling. Thank you for your help

Asked 1 day ago in Divorce


A: The circumstances that you have described are valid factors to be considered by the court in any subsequent divorce action in determining not only the issue of spousal support, but also the division of marital assets, payment of marital debts, and any attorney's fees award. In addition, as a veteran, there may be a number of benefits that your husband either currently receives or may be eligible to receive in the future (such as health insurance, life insurance, military retirement benefits, and survivor benefit annuities) that would also need to be considered by the court in determining support and equitable distribution issues. I would recommend that you contact a Virginia family law attorney to discuss this matter in further detail.

To receive notice of future LawHelp postings, you can also follow on Twitter at http://twitter.com/MandellLawHelp.


DISCLAIMERS:
This site is not intended to provide legal advice nor should any content or correspondence provided herein be construed as forming an attorney-client relationship. All content is intended as general information for educational and/or entertainment purposes. The attorney responsible for the content of this site is only licensed to practice law in Virginia and the District of Columbia and no content provided on this site is intended as nor should be construed as engaging in the practice of law in any jurisdiction in which said attorney is not authorized by law to practice. Should you require legal advice or representation, please contact an attorney authorized to practice law in your jurisdiction.

Q & A: Domestic Violence

Q: If me and my girl fight and we both are hurt i went to the er she is taken pictures of herself. Telling me if i leave and go wit: with my dad she will call the police and show them the picture what should I do we have a son and i dont want him to see us like this

Asked about 7 hours ago in Domestic Violence


A: I am assuming from your question that you and your girlfriend currently live together with your child, that this is a recent incident, that no police report has been filed by anyone (you, her, or any attending physician at the ER), and that there are no court orders regarding custody & visitation, etc. Just because you are the male in the relationship does not mean that you could not file a domestic assault charge against her if she was the aggressor. However, unless your girlfriend is a similar height and weight to you, then you may have an uphill battle proving your case in court. Whether you stay or go, your girlfriend could file a domestic assault charge against you (which you would then need to defend) - so there is no guarantee that staying will necessarily solve your current problem. If you feel compelled to stay but things heat up again, you might want to consider inviting a third party to be present (such a family member, friend, or even a neighbor) while you "work things out". The presence of a third party can diffuse a volitile emotional situation before it escalates into something physical and will also provide a witness who can testify later if things go bad. This does not sound like a healthy relationship for any of you right now. Because you have a child together, you may want to consider family counseling (there are very low cost and even some free counseling services in most areas). You should seriously consider consulting with an attorney in your local area that practices family law, to help you prepare in the event that court action does become necessary or is instigated by your girlfriend. In the interim, you might also want to take some pictures of your own (your injuries, etc.) and get a copy of your medical records from the emergency room -- you may need them in the future.

To receive notice of future LawHelp postings, you can also follow on Twitter at http://twitter.com/MandellLawHelp.


DISCLAIMERS:
This site is not intended to provide legal advice nor should any content or correspondence provided herein be construed as forming an attorney-client relationship. All content is intended as general information for educational and/or entertainment purposes. The attorney responsible for the content of this site is only licensed to practice law in Virginia and the District of Columbia and no content provided on this site is intended as nor should be construed as engaging in the practice of law in any jurisdiction in which said attorney is not authorized by law to practice. Should you require legal advice or representation, please contact an attorney authorized to practice law in your jurisdiction.