Apparently, at some point in the past, Plaintiff’s Facebook profile was “public” and accessible by defense counsel.  On that basis, the judge granted defense counsel unfettered access to Plaintiff’s Facebook account.   The judge wrote in a footnote, “The Court does not hold that discovery of a party’s social networking information is available as a matter of course. Rather, there must be a good faith basis that discovery will lead to relevant information. Here, that has occurred because Jennifer Largent’s profile was formerly public. In other cases, it might be advisable to submit interrogatories and requests for production of documents to find out if any relevant information exists on a person’s online social networking profiles.” However, despite the footnote commentary, Judge Walsh ruled that Plaintiff has to give over her username and password for her Facebook account thereby granting defense counsel access to Plaintiff’s messages and chats that are never “public” or accessible except to the individual to whom such messages are sent.  In addition, by allowing unfettered access to Plaintiff’s account, Judge Walsh’s ignored his own observations that defense counsel was only entitled to information that could lead to discoverable evidence.  One has to wonder if Judge Walsh understood the overly broad nature of his order and if Plaintiff’s attorney tried to protect his client by arguing that such ruling was overly broad and intrusive.

This author only has access to the court’s order and knows nothing else about this case.  However, it seems clear that Judge Walsh is unfamiliar with the multiple functionalities of Facebook.  One wonders if he knew he was granting access to chat logs and private messages in addition to “publicly” posted information. One also wonders if Plaintiff’s own attorney possessed enough information about the various components of Facebook to object to the Court’s ruling as overly broad or to offer less intrusive remedies to permit access to properly discoverable information while still protecting  his client’s private (and irrelevant) information.

Another Pennsylvania judge wisely crafted a much more narrow remedy for this problem.  This past June 2011, Magistrate Judge Carlson, of the Federal District Court of the Middle District of Pennsylvania, struck a careful balance between the litigant’s rights to discover relevant information and the opposing party’s right to keep private, irrelevant matters private.  Thus, unlike Judge Walsh who ordered a Plaintiff to hand over her user name and password, Judge Carlson ordered an in camera review of the Facebook page of the party’s Facebook page and then ordered disclosed only those items it believed could lead to discoverable evidence.

What is concerning is the general lack of knowledge within the Bar and the judiciary about other remedies that are readily available to address access to another party’s social media account.   Judge Walsh could have issued a protective order that limited the use or dissemination of Plaintiff’s Facebook information or ordered in camera review by an independent third party.

Instead, Judge Walsh gave defense counsel a twenty-one day period in which defense counsel could rifle through Plaintiff’s Facebook account accessing all settings, messages, chat logs, photo albums, and the like. (While defense counsel, whom I do not know, is likely an attorney of the highest ethical caliber, Judge Walsh’s order contained no restrictive language to protect Plaintiff’s information and to prevent defense counsel from sharing it with others, including his own client.)

While I disagree with Judge Walsh’s overly broad order, I do agree that posts to one’s Facebook Wall could reasonably be considered public posts even if the account is restricted. Therefore, such “Wall posts” are and should be discoverable as noted by Judge Walsh.  (My guess is that this is the only information Judge Walsh intended for defense counsel to obtain, but if he did not use or understand Facebook, he would not know that there is much more to Facebook than Wall posts.)

This flawed ruling is likely to happen again so be forewarned and do not let it happen to you if you are a litigant or to your client if you are the attorney.  The best way to access historic Facebook data is to obtain information through the Facebook’s data downloader.  Such records can easily be downloaded and then third parties could be ordered to review the information and remove any protected material or materials not likely to lead to discoverable information.  This simple solution is not only less intrusive but is also likely to produce more accurate and admissible evidence.

In an era where many people think Mark Zuckerberg is starting to look a lot like the new J. Edgar Hoover because he keeps a record of every stray photo, comment, or poke ever posted by a Facebook user, lawyers must educate themselves and their clients about the realities of social media and advocate for their clients by keeping abreast of social media and other uses of the Internet.   Lawyers who do not pay attention to how the world and their clients operate technology run the very real risk of losing not just cases and cash, but also their licenses to practice law.

Judge Knobel provides an incredibly insightful explanation of our Supreme Court’s recent opinion in Lewis v. Lewis. This case changes the landscape of practicing family law in a positive way. Now, the appellate courts may review and reconsider issues that were formally left solely to the discretion of the trial judge. This ruling is a positive stance by our Supreme Court because it allows the Court to insure consistency amongst the trial bench.

“During the years I have practiced law, and especially family law, I would guess there have been most probably a dozen appellate court opinions which could be categorized as having altered the “family law landscape” in terms of how we practice family law from the first client interview through a family court trial or final hearing (see: Johnson v. Johnson [alimony]; Panhorst v. Panhorst [equitable division of marital property]; McCrosson v. Tanenbaum and Paparella v. Paparella [custody]; Floyd v. Morgan [modification of child support] and Webb v. Sowell [college "support" for an adult child] to name a few of those “game changers”).

Yesterday, the South Carolina Supreme Court filed an opinion which will have the equivalent of creating a seismic shift in the appellate court world, and one which will be discussed and debated in the legal circles of this State for years to come. The opinion will also change the way in which family court judges issue their written instructions for final orders and/or craft the orders which they author, and in crafting these orders, it will also require the family court judge to be even more sensitive to the development of his or her trial record. For attorneys who are skilled both inside the family courtroom and inside the appellate courts, the decision in this case will give them an emboldened new sword-and-shield. Finally, and unfortunately, for those family law attorneys who have never known “how to protect your trial record”, this opinion will either force you to learn how, or it will force you to call your malpractice insurance carrier to up your policy limits.

Please take a moment of your day to read and digest the artfully crafted majority opinion written by Associate Justice John Kittredge in the case of Lewis v. Lewis . Of interest and significance to me, personally, is that Lewis was an unpublished 2008 Court of Appeals decision (2008-UP-645) in which the issues on appeal centered on the value of the marital residence (the family court judge accepted the wife’s expert’s appraised value) and the court’s award of expert fees. And yet, the South Carolina Supreme Court granted a writ of certiorari and used this virtually unknown case to clarify, but certainly redefine, the “abuse of discretion standard” which has been a bulwark in the practice of family law and a companion to every family court judge.

Without taking a great deal of your time, but to give you a gist of what you will read in Lewis, Justice Kittredge writes: “We take this opportunity to give historical context to the appellate court standard of review of family court factual findings. … Our standard of review, therefore, is de novo. Our modern day usage of the term “abuse of discretion” does not comport with our constitutionally authorized standard of review”.

For the family law attorney, I believe that Lewis will either force you to take harder looks at the “certainty of settlement” of your cases, or will force you to create as perfect a trial record as you can with the intention of now satisfying not one, but two audiences…first and obviously, your family court judge, but, if you fail to prevail, then your appellate courts (both appellate courts) if your clients can afford to appeal. If you fail to prevail at the trial level, then you will most certainly hope that the judge’s order is (1) poorly crafted and (2) contains some findings of fact unsupported by the trial evidence and testimony. Most certainly, at the appellate level, Lewis has thrown open the door wider for you, and given you a potential safety net, than at any time in the recent past.

For the family court judge, I would believe that Lewis will require that final orders are detailed enough to not only support the judge’s decision, but also to support the evidence and testimony in the trial record…and in that order of concern.

Finally, I don’t know why – and of course I will never know why – the Supreme Court selected this unpublished opinion as the vehicle to sharpen its appellate sword; however, I can only guess that our Supreme Court wanted to send a very clear message to the entire bench (at all levels) and bar that, in matters of equity, it is also “the ultimate and final trier of the facts”.

There has been a paradigm shift at this level, and I would urge that you study this case and know how to use it in the future.”

Barry W. Knobel
Knobel Mediation Services, LLC
111 Sharpe Street
Post Office Box 22 (Preferred mailing address)
Anderson, South Carolina 29622
Telephone: 864.226.3500
Fax: 864.226.3544
email: barry@knobelmediationservices.com
website: www.knobelmediationservices.com

We’ve all heard stories about celebrity divorces that become caustic and bitter disputes, fought tooth and nail in the courts for months –and sometimes even years.

But, why are these cases so complex and difficult? What could possibly cause such a long, protracted fuss?

The answer is simple. Typically, the big thing celebrities battle most about when they divorce is this:

Intellectual Property Rights

And quite often, these are rights you should be fighting for, too.

Without question, no one “enjoys” dividing marital property. Remember the famous scene from When Harry Met Sally when the recently divorced Harry (Billy Crystal) urges his starry-eyed friends Jess and Marie to label their belongings?

“Do me a favor –for your own good,” Harry says. “Put your name in your books right now, before they get mixed up and you don’t know whose is whose. Because some day, believe it or not, you’ll go fifteen rounds over who’s going to get this coffee table –this STUPID, WAGON WHEEL coffee table!” Classic.

Of course, as a Divorce Financial Strategist(TM), I totally understand what Harry was trying to say. But, in all honesty, there’s a lot more to it than that.

Sure, divorce requires dividing marital property such as homes, bank accounts, retirement plans, and yes, maybe even coffee tables (especially if they are antiques). But, in many cases, women neglect to realize that divorce doesn’t only split tangible belongings.  Divorce can impact intellectual property rights, too, and depending on your individual circumstances, these rights can be the most valuable of all.  They can be worth thousands, if not millions, of dollars.

Celebrity couples (and their attorneys) are well aware of the value of intellectual property rights –and that’s precisely why celebrity divorces can be so contentious.

As a point of reference, consider this: The divorce dispute between Michael Douglas and his first wife, Diandra, in now entering its fourteenth year! Within the last few months, Diandra filed suit claiming that she is entitled to half Michael’s earnings from Wall Street: Money Never Sleeps, a film released in 2010. Why? Because in their initial divorce settlement (back in 2000), Michael agreed to pay Diandra half of the acting earnings he accrued while they were married, including any residuals, merchandising and ancillary rights.

Reportedly, their agreement also contained language that stated Diandra would be entitled to additional money from any future “spinoffs”. According to her latest suit, Diandra contends that since the new film involves a character that Michael developed in the original Wall Street (which was filmed during their marriage), she is entitled to half of his earnings from the new movie, too.

All this may seem fairly straightforward, but it’s not. Here’s the complication. Diandra’s entire case now revolves around this single, seemingly picayune, point: Is the new movie a spinoff or a sequel? If it’s a spinoff, she gets half. If it’s a sequel, she gets nothing.

Or, in other words . . . it’s all about intellectual property rights.

If you’re considering divorce, there are a few essential points you need to know to better understand how the split could impact your intellectual property.

For starters, let’s be clear about who may have intellectual property. If you’re an author, songwriter, artist, poet, actor, designer (software, website, fashion, packaging, architectural, etc.) . . . or if you’re an inventor, entrepreneur or business owner . . . or if you have a website, logo, tag line, articles and/or white papers you’ve written . . or (I think you get the idea) . . .then you have intellectual property.

Also, understand that there are four main types of intellectual property:

1.     Patents

2.     Trademarks

3.     Copyrights

4.     Royalties and other contractual rights

And any of these may be considered marital property, which means they may be divided during divorce.

(For a more detailed discussion, see my article about the differences between marital property and separate property.)

Rules about how intellectual property can be divided vary from state to state, but the general rule of thumb is this:

Value that’s created during the marriage must be divided. And, by extension, any value that’s created before or after the marriage is typically excluded from division.

In Community Property States, both spouses are usually considered equal owners of all marital property, so any value created from intellectual property would be split 50-50. There are nine Community Property States:  Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin.

The remaining 41 states are known as Equitable Distribution States, which consider factors such as the length of marriage, the age and health of the parties, their income and future earning capacity and many other factors when determining a settlement. Settlements in these Equitable Distribution States do not need to be equal (50-50), but they should be fair (equitable).

(Note: some states have laws with both Community Property and Equitable Distribution characteristics, so always consult with your divorce attorney to ascertain which laws are specific to your state and situation.)

Regardless of what state you live in, what’s referred to as “creative control” typically remains with the inventor or creator of the intellectual property. Think about it for a minute and you’ll realize this is a reasonable approach –it usually maximizes future income potential, which obviously works in the best interests of both parties.

Intellectual property rights are just one of many assets that will need to be divided and will have financial and tax implications. Having a qualified divorce financial planner on your team can not only keep you out of trouble, but he/she can also help secure your financial future. After all, at the end of the day, you may not want that awful, wagon wheel coffee table –but you may, indeed, want your fair share of any patent, trademark, copyright or royalty payments.

—————————————————————————————

Jeffrey A. Landers, CDFA™ is a Divorce Financial Strategist™ and the founder of Bedrock Divorce Advisors, LLC (http://www.BedrockDivorce.com), a divorce financial strategy firm that exclusively works with women, who are going through, or might be going through, a financially complicated divorce. He also advises women business owners on what steps they can take now to “divorce-proof” their business in the event of a future divorce. He can be reached at Landers@BedrockDivorce.com.

Spotlight On…
by Jean Crowe, ABA Family Law, January 2011, ENewsletter

“The minute you meet Melissa Brown, you will realize that she belies the stereotype of blonde and beautiful (although she is). Melissa practices law in Charleston, South Carolina, handling complex divorce and other family law matters. She is a Fellow in the American Academy of Matrimonial Lawyers (AAML).

Melissa grew up in Charleston, and except for the years spent in college, law school, and her first jobs, she has spent her entire life there. She married her husband, Todd, twenty years ago during her last year of law school, and they have two beautiful and very active teenagers, a boy (Fleetwood) and a girl (Ellen Hudson). Rounding out the family is Golden Retriever Scout, named after Atticus Finch’s daughter in To Kill a Mockingbird. (Scout is 11.)

In 1999, Melissa started her current practice, after clerking for a judge, serving as assistant solicitor and working as an associate in a law firm.

Melissa is truly a “Woman for all Seasons.” Her first job was at a dude ranch in Wyoming, where she quickly became the Director of the Children’s Programs which required her to ride horses, fish, hike, shoot skeet, and enjoy cool summers with no humidity. Next she worked as a waitress in Vail and skied on dry Western snow. Melissa says she was paid to have fun outdoors; however, her mother persuaded her to return East and attend law school. Melissa now loves practicing law, but often dreams of the West.

Melissa was introduced to the ABA Section of Family when she attended the ABA Family Law Trial Advocacy Institute. The great people she met there convinced her that she should attend an ABA Family Law Section meeting. After the first meeting, she was hooked. She found family lawyers at the meeting who quickly became great friends, mentors, and motivators.

Melissa continues to cultivate many hobbies, both indoors and out. She loves outdoor sports, especially tennis, horseback riding, snow skiing, and fly fishing. Her favorite indoor hobbies are making jewelry and tying flies, which she often combines with another favorite activity, enjoying a good glass of wine. She is also an avid reader and loves her Kindle. She even finds time to work out at the gym, both at home and while attending Family Law Section meetings.

Melissa has more than one favorite quote to live by: ‘Be who you are and say what you feel because those who mind don’t matter and those who matter don’t mind.’ (Dr. Seuss); and from Philippians 4:8 (NKJV) ‘Finally, brethren, whatever things are true, whatever things are noble, whatever things are just, whatever things are pure, whatever things are lovely, whatever things are of good report, if there is any virtue and if there is anything praiseworthy–meditate on these things.’”

© 2011 American Bar Association, Reprinted with Permission. All rights reserved. This article first appeared in the January 2011 issue of the ABA Section of Family Law eNewsletter. This information or any or portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

Out of curiosity, I typed “New Years Resolution Divorce” into Google and got 540,000 results in .29 seconds. While not all of the search results were on point, many were extremely interesting. It turns out that my intuition about this topic was right and that there are several reasons for it.

One article on Salon.com put divorce up there with weight loss on New Years resolution lists. Also cited in this article was that affairs are often discovered around the holidays. Another article linked above attributed it to “new year, new life”. Another article claimed that the holidays create a lot of pressures at the end of the year that combine to put stress on people in unhappy or weak relationships. Family, financial woes, etc. associated with the holidays add to the stress. Turning over a new leaf to start over and improve ones life was another reason given. This seems to be a logical explanation for a clearly difficult and perhaps heart wrenching decision.

In my experience, people with children often want to wait until after the holidays for the sake of the children. There is also the hope, perhaps overly optimistic, that the divorce will be completed by the beginning of the next school year. These people tend to be in the “improving ones life” camp.

So as divorce lawyers, we hope to avoid or at least resolve in advance the holiday visitation disputes that inevitably crop up, then relax and enjoy the holiday as we await the busy season to begin.

In 2010, the phenomena started early for us and many other attorneys. We were contacted by more people in December than in any year in recent memory. Moreover, we have heard of more people telling their spouse it “is over” before the holidays this year. I suspect that in some, it was the discovery/disclosure of a new significant other or perhaps pressure being exerted by that person that was the cause. In other cases, the person just didn’t want to wait until the new year to advise their spouse. Whatever the reason, we await those who see 2011 as a chance for happiness or a fresh start. Happy New Year?!?!
Eric S. Solotoff Editor of the Blog
Roseland, NJ
973.994.7501
esolotoff@foxrothschild.com

I tweeted yesterday that my firm’s experience is similar, but my hope, along with Eric and many other divorce attorneys, is that couples can work through their marital difficulties before rashly going down this path.  Here’s wishing all the best in 2011!
Melissa F. Brown

So, before I initiate a suit on behalf of a client, we discuss alternatives to resolving their issues other than the legal system.  I recommend books to read and counselors/therapists/psychologists/psychiatrists/ministers/rabbis etc to consult who have the professional training to identify the “real source” of their unhappiness in their marriage.

Marriage is not easy.  My 20th wedding anniversary is on the 29th of this month, and my husband and I acknowledge that marriage takes a whole lot of work and lots of forgiveness.  But, even though there are always times in any marriage where one partner hurts or disappoints the other, it is possible to overcome these hurdles if both spouses put their relationship ahead of these momentary low points.  Further, forgiving, respecting and cherishing the other are all part of the formula for a healthy marriage.   Of course, this is sometimes easier said than done, and I certainly cannot hold myself out as one who follows the formula often enough.  I have a long way to go toward remembering those ingredients on a daily, much less monthly basis.

I do know, though, that divorces can devastate  families, emotionally  and financially.  They can also devastate unintended victims especially the children, friends,  extended family, co-workers and others who all too frequently are reluctantly, pulled into the fray.  It is also incredibly sad to hear someone say with huge regret, “If I had only known in my first marriage what I know now, I would have given my all to work out our problems and remain married to my first spouse.”

Some may wonder why am I a divorce attorney?  Sometimes, I ask myself the same question.  Over the years the answer is the affirmation and thanks from incredible people who find themselves in difficult, painful divorce situations from which there is no turning back, who tell my team and me that we helped them through the process.  I think most family law practitioners feel similarly, and they agree we truly want to help our clients through a very difficult and emotional time in their lives.   Practicing family law has its challenges, and it is discouraging at times to work in an environment where there is so much heart ache.  But, when we help people through this process who appreciate our efforts, it is worth the “thick skin” I and others have “grown” over the years.

Before choosing to seek a divorce, please try to resolve your marital difficulties through other means and know reconciliation is always an option.  My hope, my goal, my wish and my prayer for all potential clients are to educate them about the process so they make fully-informed, wise, educated decisions before resorting to the legal system.  But, in those situations where reconciliation is not possible, strive to reach a fair, equitable resolution through a less contentious process, such as mediation, to avoid inflicting unnecessary pain upon your children, your spouse and yourself.

In South Carolina and most other states, it is unethical for divorce attorneys to request payment from their clients in the form of a percentage of the ultimate receipt of the marital estate. This form of payment is quite common in personal injury cases, but it is repugnant in family court cases except those which involve only the issue of collecting an alimony or child support arrearage.  However, a company whose investment is an arms length transaction and the company has no influence upon the the party’s ultimate settlement, it is permissible and in this author’s opinion, not at all repugnant.

Stacey Napp, the owner of Balance Point, founded the company following her own difficult divorce experience.  Her company’s business model is  novel because it only invests in divorce cases.  I would not be surprised to see it take off.    Equalizing the playing field so both parties have equal access to experts, experienced attorneys and other litigation costs removes the stress of worrying about how to pay for these necessary players or settling for less than one deserves simply because the party feels they cannot afford to fight for what is rightfully theirs.

According to The New York Times, Madeline Marzano-Lesnevich, an officer in the American Academy of Matrimonial Lawyers, welcomes the concept of businesses providing divorce funding to parties who might not otherwise have access to funds until the case was over.  I welcome the concept as well and hope Ms. Napp’s idea takes off so those in needs of funds have access to them, including those whose assets are much less than the cases in which Ms. Napp invests her monies.    Read more here:  http://tinyurl.com/253bx4q