A recent study indicates that leading family law attorneys have seen a surge in the use of evidence at trial collected from smart phones.
The American Academy of Matrimonial Lawyers (AAML), a nationwide organization of domestic relations attorneys, conducted a study that involved asking attorneys how often they have seen the admission in trial of various types of evidence taken from iPhones, Droids, and other smart phones over the past three years.
92% of those surveyed indicated that they had seen an increase in the use of such evidence. 94% of the respondents claimed that they had seen a major rise in the use of text messages.
When asked what the most common type of evidence used from smart phones was, 62% of respondents said text messages, 23% said emails, 13% said call histories, and 1% said Internet browser histories and GPS data.
Ken Altshuler, President of the AAML, said, “As smart phones and text messaging become main sources of communication during the course of each day, there will inevitably be more and more evidence that an estranged spouse can collect.”
In states that allow for fault-based divorces text messages are frequently used to prove infidelity of a spouse. Such fault can have implications on property distribution in certain states.
In a recent 2011 decision, Turner v. Rogers, the United States Supreme Court held that a person held in contempt of court for failure to pay child support is not entitled to state-appointment of counsel, even if the punishment involves imprisonment of a year or more.
The case began when Michael Turner failed to pay child support of $51.73 per week pursuant to a court order in South Carolina. During a three year span, the court held him in contempt four times, each time sentencing him to imprisonment for 90 days. Turner managed to pay off what he owed each time. When he was held in contempt a fifth time, he was sentenced to incarceration for 6 months. He served the sentence, but did not pay off the child support arrears.
When he was released, the court called Turner back in and asked him why he hadn’t paid off his child support. Turner was not represented by an attorney. He explained that he got out and did drugs, injured his back, went on disability, and then straightened himself back out. Turner pleaded for another chance to pay off his child support.
The trial court didn’t give Turner another chance. Turner was sentenced to 12 months imprisonment.
With the assistance of pro bono counsel, Turner appealed. The theory was that Turner, an indigent party, should have been entitled to the appointment of counsel. In a criminal setting, the Supreme Court has long held that indigent defendants are entitled to state-appointed attorneys pursuant to the Sixth Amendment of the United States Constitution.
The United States Supreme Court agreed to hear the case. It did not, however, agree with Turner’s interpretation. The Supreme Court found that civil contempt proceedings are not governed by the Sixth Amendment.
The Court pointed out that the underlying issue in a child support contempt hearing is whether the defendant could pay, whereas, in a criminal case, the issue of whether or not the defendant can pay is determined prior to appointment of counsel.
The Court also pointed out that the plaintiff in a child support case is generally another unrepresented party, while in a criminal case, it’s always an attorney appearing on behalf of the state. Appointing counsel to the defendant, would create an imbalance, when most plaintiffs in child support cases don’t have counsel.
Finally, the Court indicated that child support proceedings generally are embedded with procedural safeguards that inherently protect defendants and otherwise comply with due process.
Nonetheless, the Court found that there were inherent problems in this particular case. The trial court did not include many of the procedural safeguards that should have protected Turner. For example, there was no finding as to whether or not Turner actually was capable of paying the child support arrears. For that reason the Supreme Court said that there was a due process violation and therefore reversed and remanded the case.
Generally, when you and the other parent of your children can’t agree on who should get custody you both go down to the courthouse, get an order from the judge, and that’s that.
But things can get a bit more complicated when the other parent lives in a different state from you. For example, what happens when you go to the courthouse and get an order, and the other parent goes to the courthouse in their state, and suddenly, you have two conflicting orders issued by two different states?
To deal with this kind of problem, almost every state, including Florida, has adopted the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). The UCCJEA provides a system of rules that dictate which state should be responsible for issuing custody orders. Because most states follow these same rules, courts know when they should issue a custody order and when they shouldn’t.
Although the UCCJEA can be fairly complex, one of the core ways to determine which state should be issuing the initial orders is determined by looking at the first of:
- The child’s home state, which is where the child has been residing for the past six consecutive months; or
- If there is no home state, then the state where one parent resides, the child has the most significant connection, and where substantial evidence is available; or
- If state’s 1 or 2 above decline jurisdiction, then any state a parent files in; or
- If no state satisfies any of the above, then any state where a parent files suit.
These are just the basics, and the UCCJEA can get fairly complex. So if you have a child custody issue you should speak with an experienced family law attorney.
Many have heard of common law marriage, and wonder if simply living with a partner will result in their being married. The short answer is that Florida generally does not recognize common law marriage.
Common law marriage is a way to get married to someone without having a written marital contract or license and without having a formal ceremony.
In those states that recognize the rule, there are typically three major requirements:
- An exchange of consent between competent parties – This means that the couple must agree to a permanent exclusive relationship.
- Cohabitation – This means that the parties must live together.
- Holding out publicly to others that the partners are husband and wife – This means that the couple must present themselves to other people as though they were married. This could include such things as calling a partner a “husband” or “wife,” or taking on the same last names.
All of these requirements must be satisfied to have a common law marriage. Thus simply living together would not be enough.
Today, very few states recognize common law marriages. Florida used to recognize them, however, in 1968 they were abolished. So even if you satisfy all of the above elements while living in Florida, you will not be legally married.
There are two major situations in which Florida will still recognize a common law marriage. Namely, those include situations where the parties validly entered into a common law marriage in a state that still recognizes common law marriage, or situations when the parties satisfied the requirements of common law marriage prior to 1968.
If you think that you have met the elements, and think that there may be some implications regarding your situation, you should speak with a family law attorney.