Category: illinois

Jennifer Lawrence & Other Celebs Learn – Your Photos Are Never Completely Private

Jennifer Lawrence & Other Celebs Learn – Your Photos Are Never Completely Private

You have zero privacy . . .”
Scott McNealy, then CEO of Sun Microsystems

The latest photo scandal for Jennifer Lawrence, Victoria Justice and other celebrities illustrates an important point to remember in your divorce or custody case.  Your photos and your information are never as secure as you think they are.

I previously discussed the fact that your Facebook and other social media can be used against you in court.  Nevertheless, people often feel much more secure having their own “private” stash of photos, videos, etc.  These “private” images almost certainly will not remain “private” once a civil suit is filed.  If anonymous hackers are able to seemingly routinely get their hands on private photos of celebrities, how much easier will it be for someone close to you (i.e. a spouse or lover) to figure out a password or supposedly secret hiding place?

Unless you wind up with a child as a result of a one night stand, most likely the person on the other side of your divorce or custody case kno
ws you quite well.  Most likely, they can guess your password to your phone without a lot of effort or they know that supposedly super-secret hiding place you use.  Those will be some of the first places they look to dig up dirt on you.

In the years I have been handling divorce and custody cases, believe me I have seen people who felt the need to record, write about or photograph some pretty bizarre things.  The relevance of these depends on the facts of the case and may actually be of dubious value from a litigation standpoint.  However, their value for settlement negotiations can be immeasurable when the writer, video star or photo subject really, really does not want them released into the public record.  The value of these can go up exponentially if you are seeking maintenance and have already started a new relationship and decided to “document” it.  Why put yourself at risk?

Anything that is photographed, written down or recorded has the potential to be used against you in court.  So before you decide to be a star in your own movie or you decide the world needs photos of you in your unmentionables (trust me, we don’t), ask yourself if you would want your grandma to see it.  Unless your grandma looks like this, in which case you should just cut to the chase and decide if you would ever want a judge to see it when deciding if you are a good parent.  The best advice is simply to keep your privates private.

Photo courtesy of Amy Wilbanks

How Do I Know If It’s Time to Hire a Different Lawyer?

How Do I Know If It’s Time to Hire a Different Lawyer?

The decision to change attorneys is a costly one.  It takes an emotional toll when you are already emotionally vulnerable.  It takes a financial toll and it takes a toll on your time when all you want is to get this process over.  You will have to go through getting to know your new attorney and how his office works.  Your new attorney will need time to get up to speed on your case, which will cost you money.  All of this will most likely delay the proceedings.

Nevertheless, if you feel your current counsel is not adequately representing your interests or if you feel that you can no longer work with that lawyer (sometimes called a breakdown of the attorney/client relationship), you might be well served by changing attorneys and should not hesitate. The sooner you act, the more likely you will be able to ensure that your rights are protected and that you have an attorney in whom you have faith and can trust to represent your interests.

Before you go through the expense and trouble of hiring a new attorney, you should take a hard look at your case and ask yourself some things:

  • Have I expressed my concerns to my attorney?  I mean, have you calmly and reasonably talked with your attorney about what is bothering you and not tried to get attention by being rude or demanding to the attorney or the office staff.  (FYI – that is never effective at getting a response you want.)
  • When I expressed my concerns, did my attorney take steps to remedy the situation?  This would apply whether we are talking about moving the case forward or simply handling an issue of communication between you and your attorney.
  • Is my lawyer open and receptive to what I have to say or does he get defensive?  Again this might depend on how your present your problem to the attorney, but attorney’s are professionals and should not get their feelings hurt if you are expressing a legitimate concern.
  • Am I blaming my lawyer for the bad behavior of my spouse or opposing counsel?  Try as you might, there is no way to litigate someone into not being a jerk.  Don’t blame your lawyer.
  • Have I provided my lawyer with all of the information he needs to take the next action in my case?  As a lawyer, it is impossible to go into battle with an unloaded gun.  Give your attorney all of the ammunition he/she needs.  You have responsibilities in this case as well.
  • Am I blaming my lawyer for things over which he/she has no control?  Sometimes, the law just is not on your side.  Make sure you ask whether it is your lawyer’s fault or if it is the law or even the judge that govern’s the outcome.
  • Is my lawyer keeping promises for completing action on my case?  Basically, is the lawyer doing what he says he is going to do?
  • Do I trust my lawyer?  Much like in a marriage, once the trust is gone, you need to go elsewhere.  Remember, you are putting your future and the future of your family in this person’s hands.
  • What are the relative advantages of hiring a new attorney compared to the costs?  Weigh out the pros and cons of changing lawyers.
  • Do I feel like my lawyer will support me to achieve my goals in this case?  Has my lawyer ever even asked me what my goals are?

You should make every effort to avoid changing attorneys in the middle of your case.  It can make a difficult situation even tougher.  There is an old adage that says you should never change horses mid-stream, but you might be on a horse that just can’t swim.  If that is the case, you should probably find yourself a canoe.

Photo courtesy of Stephen

Can I Bring a Friend or Family Member to My Consultation?

Can I Bring a Friend or Family Member to My Consultation?

The short answer is yes, you can bring someone with you to your initial consultation.  Whether you should bring someone or allow that person to sit through the entire meeting is another matter.  Going to see a divorce/custody attorney for the first time can be intimidating and scary.  Having someone else there can be a great resource for support and comfort.  This person might be your designated note taker so you can focus on listening to the attorney and asking questions that are pressing on your mind.  Your friend can also help make sure that you ask everything that is concerning you.  They might also help keep you organized and make sure you give the attorney all of the information he or she may need.  Keep in mind that this is your consultation and it is important that the attorney hear the facts of the case from you and that you discuss your goals.

It is also important that your consultation with the attorney be as open and honest as possible.  Everything you discuss with the attorney, whether you retain the attorney or not, is to be held in the strictest of confidence.  Nevertheless, there are sometimes issues involved in a divorce that may be embarrassing to you and difficult to share.  This can be double tough when your mom or best friend from grade school is sitting next to you.  If there are certain facts that you are embarrassed to share with your friend or relative present, you should probably ask them to wait outside while you discuss them with the attorney in private.  While the attorney has a duty of confidentiality to you, your friend or family member owes you no such duty.

Another reason to ask your companion to wait in the lobby is due to attorney-client privilege.  The attorney-client privilege is different from the attorney’s duty of confidentiality.  The duty of confidentiality binds the attorney to not reveal your secrets or other information about you.  The attorney-client privilege deals with the judicial system and your ability to invoke the privilege to prevent a court from requiring the attorney to reveal information about you.  That privilege applies to all communications you have with your attorney unless those communications also involved third parties (i.e. your mother was sitting next to you).  In that case, the privilege may be deemed waived as to any communications that took place while that third party was present.  Long story short, be careful about you bring with you to your consultation and what you say in their presence.

Photo courtesy of Allen

What Can I Expect at an Initial Consultation With an Attorney?

What Can I Expect at an Initial Consultation With an Attorney?

A lawyer’s time is his stock in trade. ~Abraham Lincoln

Not all initial consultations are created equal.  Many attorneys, especially in the area of divorce and family law, charge an initial consultation fee.  There are several attorneys who offer free consultations, but the advice you get, if any, may be worth exactly what you pay for it.

The nature of the advice you get in an initial consultation will vary greatly depending on the nature of the case about which you are consulting with the attorney.  If you are just beginning a divorce case, you will get much different information than if you are in the middle of a contested case.  It will also depend on if you are merely on an information gathering visit or ready to file something immediately.

During your first meeting with an attorney in addition to the other information you should bring, which we discussed here, you should be prepared to provide the following information to your attorney:

  • A brief history of the marriage
  • Background information on you, your spouse, your children and other pertinent members of your family
  • Information about your immediate situation and/or needs
  • Your goals regarding your post-divorce future and, more specifically, your relationship with your soon-to-be ex-spouse
  • The information you need from the attorney, i.e. come prepared to ask questions

The attorney you meet with should be able to provide you with the following:

  • A summary of how divorce works in Kentucky and a rough outline of how the case will progress
  • A discussion of the issues that are relevant to your case and how he/she might approach each issue
  • A preliminary assessment of your rights, obligations and responsibilities under the law
  • Background on the attorney, the firm, and their experience in family law matters
  • Information about fees, court costs and other expected litigation expenses.

The initial consultation is an opportunity for you to develop a rapport with the prospective attorney.  You will be putting the immediate (and possibly long-term) future of you, your children and other members of your family into this person’s hands.  It is imperative that you trust this person and are satisfied with the advice they give you and that they have the ability to handle your case.  You should expect them to not only answer your questions, but ask you questions that show he/she understands your situation.  While it is impossible for an attorney to answer every single question at an initial consultation, you should be able to develop some sense of comfort with the person.  If not, you need to keep on searching.

Photo courtesy of Solo, with others

My Spouse Says We Should “Share” an Attorney for Our Divorce. Should I Hire One Anyway?

My Spouse Says We Should “Share” an Attorney for Our Divorce. Should I Hire One Anyway?

The Code of Ethics for Kentucky attorneys prohibits an attorney from representing two people with conflicting interests in a dispute.  A divorce is most definitely a dispute in that it is by its very nature an adversarial proceeding.

There are times when a couple reaches an agreement directly with each other prior to contacting an attorney.  One party will usually then take the step of actually hiring the attorney, however, the other party should not be under any dilution that the attorney represents both parties.  When one party hires an attorney and the other spouse declines to do so, which is very common, the attorney that is hired cannot tell the other spouse whether the agreement is in his/her best interests.  The other spouse should hire separate counsel to at least review the documents before they are signed to make sure that the spouse understands the agreement.  This independent counsel can provide answers to possible legal effects of the divorce agreement, whether the agreement is even conscionable or legal, and make referrals for the spouse to financial advisers to discuss tax, retirement and health insurance ramifications.

If your spouse has filed for divorce or hired an attorney and told you that you do not need a lawyer, you would be wise to at least meet with a lawyer to ensure that you understand your legal rights.  I often get asked whether an attorney is even needed for a divorce.  Technically, the answer is “no,” but then again you do not need a surgeon to amputate an injured leg.  It just usually works out better if you do.

Photo courtesy of Brian Hawkins

Can Facebook and Other Social Media Be Used Against Me in My Divorce/Custody Case?

Can Facebook and Other Social Media Be Used Against Me in My Divorce/Custody Case?

The short answer is YES!  I love using social media.  I have links to all of my profiles listed on my business cards and I often check Facebook or Twitter before I even roll out of bed.  I enjoy posting snarky and smart alec comments or jokes and embarrassing pictures of me and my family.  It’s fun.  However, during a divorce or child custody case, it is probably a good idea for you to back off of social media for a number of reasons.

The first is that it is probably not going to do anything to encourage settlement of your case.  In fact, it will probably just add fuel to your ex’s anger.  Whether it is veiled statements you are making about him/her, bragging about how much better your life is without the ex, or even posts that you feel may otherwise be harmless; you never know how someone else is going to take something you have posted.

The judge will see your posts.  I do not care what kind of Fort Knox level privacy settings you engaged on your favorite social media site.  It will be seen by your ex or a friend of a friend of the ex and it will get out.  It will then be seen by the judge and it will be considered as part of your case.  I once had a case where I represented a mom and I advised her to back off of her Facebook usage for the duration of the case.  She was resistant because she had all of the privacy settings engaged and besides she “only uses it to share pictures of her kids with her sister in California.”  We get to court and apparently one of those pictures she liked to share with her sister was of her dancing on a pool table while holding a fifth of vodka in her hand while dancing with another woman who appeared to be slapping her on the rear.  At least, that was the picture that was presented by her ex in court.

Do not delete your posts if you already have an account.  If you do, you could be accused of destruction of evidence.  This can have a number of ramifications including that the court will assume there is something in the files you deleted that was detrimental to your case and will, therefore, make a negative inference that you are hiding something.  This is totally legal under the rules of evidence and very bad for your case.  If your attorney ever advises you to delete your posts, that attorney is violating state ethics rules and probably the law as well.  In recent years, I have heard horror stories of attorneys being sanctioned thousands of dollars and even being suspended from practice for advising clients to delete posts from social media.  Do not do it.

Social media is a lot of fun and a great way to share information with your friends and family.  Unfortunately, during litigation it becomes a gold mine of information and evidence for family law attorneys.  While your case is pending, just back away from it and stay offline for a while.  No one is that interested in what you had for lunch anyway.

Photo courtesy of Jason Howie

How Do I File My Return If My Divorce Is Not Final By the End Of the Year?

How Do I File My Return If My Divorce Is Not Final By the End Of the Year?

Today’s article is brought to you by Tara R. Blazina, CPA with Kemper CPA Group.  We routinely consult with Tara and others at Kemper on tax, financial and business valuation matters. 
Filing status is determined on the last day of the tax year (usually December 31). A couple who has not obtained a final decree of divorce or separation by the last day of the tax year is considered married for tax purposes. There are five filing statuses, only four of which pertain to parties who are divorced or in the process of getting a divorce. Individuals who are deemed married can file as married filing jointly, married filing separately or as head of household (if certain qualifications are met). An unmarried individual may file as single or head of household.
Often times, married filing jointly will create a lower tax liability. However, both you and your spouse are jointly and severally liable for the tax liability. Married filing separately allows you and your spouse to only be liable for the tax reported on your separate tax returns, but may create a higher tax liability. Your tax preparer should be able to calculate both married filing jointly and married filing separate to identify the advantages and disadvantages of both filing statuses so that you may make the best decisions for your situation.
If you file married filing separately, you and your spouse may amend the return to change to married filing jointly for up to 3 years after the due date of the return (not the extended due date) However, if you file married filing jointly you may not subsequently amend the return to file married filing separately; except in the event of a death of either the taxpayer or the spouse. A personal representative for a decedent can change from a joint return elected by the surviving spouse to a separate return for the decedent. The personal representative has 1 year from the due date(including extensions) of the joint return to make the change. [IRS Publication 504]
In order for a married individual to file a head of household, they must be deemed an “abandoned spouse”. All of the following qualifications must be met to be considered an abandoned spouse. 
  • The individual pays more than half the cost of maintaining his or her household for the taxable year.
  • The individual files a separate tax return.
  • The individual’s household is the principal home of a dependent child for more than six months of the year (this condition is met if the tax payer is entitled to claim the dependency exemption for the child, even if they do not claim the deduction).
  • The individual lives apart from their spouse for the last months of the year.

There are many facets of a divorce that can impact your tax return. It is important to discuss all options with your tax preparer and be aware of the tax impacts of your decisions. 
Note: This information is general in nature and should not be construed as tax advice. You should always work with your attorney or tax professional to determine the tax advantages that will best fit for individual situation.
No One In My Family Has Ever Been Divorced and I Feel Ashamed. Will My Children Feel the Same Way?

No One In My Family Has Ever Been Divorced and I Feel Ashamed. Will My Children Feel the Same Way?

Change is tough.  Changing how you view yourself is even tougher, but when you have children it is important.  Despite what you may feel, there is much less social stigma to divorce now than there was even twenty years ago.  The pendulum has swung so far that my children came home from school when they were little and told my wife and I that we were the odd family because we were still married.  Even with that being the case, perception is often our reality and it is not uncommon for people going through a divorce to feel this way, but it is important you protect your children from those feelings.

One of the best ways to overcome any sense of shame is to encourage the children to take pride in their new family unit.  Urge the children to look forward to the future with a sense of possibility for what is to come.  Although you cannot possibly predict the future or how your children will feel, you can mitigate their feelings of guilt by helping them to understand what is happening and reenforcing that they bear no responsibility for the divorce.  Remind them that both parents still love them and will continue to love them (even if the parents no longer love each other, but you do not have to point that out).  Whatever you do, you must refrain from projecting your own feelings onto your children.  They are not your sounding board or counselors and do not need that burden.  Let them react in their own way and experience their own feelings.

This is your opportunity to really step up and be a role model to your children.  They will see you overcome obstacles and tackle new challenges while demonstrating a newfound sense of independence.  As a family you will move forward and overcome this hurdle of life.  You can be a wonderful teacher to them in this time.  If you have more questions about how to deal with these issues, I would encourage you to talk with a therapist or your children’s guidance counselor.  If you have questions about your legal rights, contact the Alford Law Office.

Photo courtesy of Andy Bullock

My Spouse Moved Out Weeks Ago, But I Don’t Want A Divorce. Should I Still See an Attorney?

My Spouse Moved Out Weeks Ago, But I Don’t Want A Divorce. Should I Still See an Attorney?

You have to prepare for at least the possibility that your spouse is not coming back.  This is a tough pill for some people to swallow.  The other spouse who has moved out has probably been planning this move for a while and has already been through the five stages of grief, arrived at acceptance of the situation and is now moving on with his/her plan for a divorce.  You, meanwhile, are left mired in stage one, denial.

While you are paralyzed by fear and doubt, your spouse is securing documents, raiding the bank account, and gathering evidence for his/her case. It is even worse if your spouse has taken the children with her and left for another state.  I see this sort of thing happen quite often.  Kentucky is bordered by seven different states.  Some of those states (like Illinois) have very short residency requirements in order to be able to file for divorce.  A wife can pack up the child and move across the river and file for divorce in Illinois after only ninety days.  You may be able to fight jurisdiction over the child custody issues and probably be successful, you will still wind up spending more in attorney’s fees all because you did not move quickly to protect your rights.

Regardless of whether you actually want a divorce, you should see a skilled family law attorney to learn about your rights.  Keep in mind, a number of attorneys promise free consultations, but do not actually provide any sound legal advice in these “consultations.”  Remember the old maxim, “You get what you pay for.”  Even if you are not prepared to file for a divorce, the attorney can guide you and advise you on actions you can take immediately to safeguard yourself as well as your children both physically and financially.  The attorney can also advise you as to your options on divorce and legal separation or possibly refer you to quality marriage counselors.  Moreover, even if you are not ready for a divorce, you spouse may have already determined it is the only option.  You have to be prepared especially if you have already been served with divorce papers.

The prospect of going through a divorce is never something anyone wants to think about.  Nevertheless, if you are in this situation, you simply cannot sit back and just hope things get better.  You must take steps to protect yourself.  If you have more questions, please contact the Alford Law Office.

Photo courtesy of  Bob B. Brown