Tag: protect

Artificial Fraudulence

Seth Godin stated it well when he wrote, “The ease with which someone can invent and spread lies [with advancing technology] is going to take most of us by surprise. It’s going to require an entirely new posture for understanding the world around us.”

This is especially true in family law.

We will soon reach the point (some are there already) in family law where a spouse or parent can create fake email, text, and audio and visual “records” of spousal and child abuse, substance abuse, infidelity, assets and debt, property damage, diminution and dissipation of assets, scientific data, etc. that is all but indistinguishable from the genuine article. The level and volume of fakery will be impossible for all but the wealthiest of litigants to discern (and even then, if a duped judge is too proud or to biased to acknowledge and remedy the fraud, all the proof in the world won’t protect the innocent). When truth is practicably impossible to verify in the legal process, truth becomes meaningless to the process.

I don’t know how best to address this problem (it may already be too late). Unless the profession takes immediate and wise action, the liars will make such a mockery of the legal process so fast and so pervasively that trust in the system will be irreparably destroyed (and with good reason). We may reach a point where society at large gives up on the notion of justice being a function of truth (reality).

One concern I have is members of the profession (both opposing counsel and judges) acting “offended” for outraged or “concerned” if somebody claims that deepfakes and other similar tactics are being engaged. I’m concerned that someone who may in the utmost sincerity raise legitimate concerns about the authenticity and veracity of certain evidence being ridiculed as paranoid, a vexatious litigator, unprofessional, etc. Not out of a genuine belief, but in the hopes that shaming or even persecuting the whistleblower will result in the claims being retracted so that the hard work of getting to the truth can be avoided and or so that the desired outcome is not impeded by the facts. When that happens, then who will judge the judges, and by what standard?

Utah Family Law, LC | | 801-466-9277

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Are there laws that protect one parent from being a victim of the other parent’s continuous reporting, through the other parent’s attorney, about violations of a restraining order that are all lies?

Are there laws that protect one parent from being a victim of the other parent’s continuous reporting, through the other parent’s attorney, about violations of a restraining order that are all lies?

Are there laws that protect one parent from being a victim of the other parent’s continuous reporting, through the other parent’s attorney, about violations of a restraining order that are all lies?

Practically speaking (and in my experience), yes and no.

I’ll start with the “no” part of my answer because it’s short. I say “no” because although there are rules against frivolous, bad-faith litigation (such as litigation based on lies), these rules are shamefully under-enforced. So even if you can make a clear case for an opposing party engaging in frivolous, bad-faith litigation, in my experience courts rarely punish such behavior. It’s one of the main reasons people lose faith in the legal system when they find themselves subject to the system.

The best way to protect yourself from having a court believe the opposing party’s lies is to prove them false by objective, independently verifiable evidence that cannot be denied. So, document your words and deeds six ways from Sunday. If it’s not a close call, the opposing side’s efforts to cheat won’t make any difference.

And here’s my “yes” part of the answer: Most jurisdictions, including the jurisdiction in which I practice law (Utah), have a rule or rules that is intended to prevent frivolous litigation. One such rule in Utah is the Utah Rules of Civil Procedure rule 11 (which is almost identical to the Federal Rules of Civil Procedure rule 11). Utah’s rule 11 provides:

(b) Representations to court. By presenting a pleading, written motion, or other paper to the court (whether by signing, filing, submitting, or advocating), an attorney or unrepresented party is certifying that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances,

(b)(1) it is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation;

(b)(2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law;

(b)(3) the allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery; and

(b)(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief.

(c) Sanctions. If, after notice and a reasonable opportunity to respond, the court determines that paragraph (b) has been violated, the court may, subject to the conditions stated below, impose an appropriate sanction upon the attorneys, law firms, or parties that have violated paragraph (b) or are responsible for the violation.

There are also laws against making frivolous and bad-faith claims. Utah’s law is:

78B-5-825. Attorney fees — Award where action or defense in bad faith — Exceptions.

(1) In civil actions, the court shall award reasonable attorney fees to a prevailing party if the court determines that the action or defense to the action was without merit and not brought or asserted in good faith, except under Subsection (2).

(2) The court, in its discretion, may award no fees or limited fees against a party under Subsection (1), but only if the court:

(a) finds the party has filed an affidavit of impecuniosity in the action before the court; or

(b) the court enters in the record the reason for not awarding fees under the provisions of Subsection (1).

Utah Family Law, LC | | 801-466-9277


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Would you tell someone that his/her spouse is cheating?

Would you tell someone that his/her spouse is cheating?

First, I need to make clear that my answer is in my capacity as just a member of the public. If a client of mine (I am a divorce attorney) was having an extramarital affair and disclosed this to me in my capacity as his/her attorney, I would be prohibited from notifying my client’s spouse of my client’s infidelity).

Second, let’s get two definitions down: 1) cuckold: a husband of an adulterous wife; and 2) cuckquean: a wife with an adulterous husband.

The question: Would you tell someone that his/her spouse is cheating?

My answer: If I knew it and could provide independently verifiable evidence of it, yes, I would. It may not be welcome news (to say the least) to the cuckold/cuckquean, but he/she does not deserve to be fooled and humiliated, potentially robbed of family resources spent on the paramour, and potentially placed at risk of contracting a sexually transmitted disease by being kept in the dark. It appears clear to me that I have a moral duty to notify the cuckold/cuckquean when I have the power to take steps to protect him/her and the family’s children. The truth may hurt, but ignorance will hurt even more.

Utah Family Law, LC | | 801-466-9277

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How can I protect my assets before getting married without prenup?

How can I protect my assets before getting married without prenup? Short answer: One option (not a very good one, frankly, but about the best there is under the circumstances as you describe them in your question) is:

1) own no major/valuable property before you are married (in other words, your spouse would probably not seek (and the court would probably not award to your spouse any part of) a portion of things like your clothes and personal effects, so you could live in a house and drive a car you lease and thus have no such “big ticket” items that could be sold and the proceeds of sale awarded to your spouse in divorce;

2) save nothing in the bank or in investments and retirement accounts, so that there is nothing like in which your spouse could try to claim an interest; and

3) ensure that you do not earn more than your spouse does, so that your spouse cannot make an easy argument for alimony.

Your real question may be this instead: How can I prevent losing too much (being treated unfairly) financially in divorce? If that is your question, it is a very good and very common one. After all, most reasonable people would agree that what a couple acquires together during marriage is considered “their” property, “our” property, instead of “there’s yours and there’s mine”. For example: a couple marries and buys a house together in which they live for years. Sure, it may have been that one spouse worked full time while the other stayed home to take care of the kids and the house, but they are a team, partners (in both a legal sense and a practical sense).

Another example: Saving up for retirement. It is common for one spouse to be better able to pursue a career and advance in it (thus making more money for retirement) when the other spouse stays home with the children (at least while they are quite young) and keeps house. Both spouses understand that one hand washes the other. The decision to purchase the house and the decision to have one spouse be the primary breadwinner and the other the children’s primary caretaker was made together, for mutual benefit. The spouse with the full-time job knew in advance that he/she would be sharing the house and retirement funds with his/her spouse and worked for the money needed to fund these things. It is understood that these things are marital property that would be divided equally in the event of divorce. It makes sense. But there are other issues that are not so clear cut. Many people—mostly husbands, but a growing number of wives—have this sense that:

  1. a) “divorce should not result in my being financially exploited”;
  2. b) “divorce should not result in being robbed of what was mine before marriage and what I acquired for myself during marriage”;
  3. c) “I shouldn’t have to continue to support a spouse financially if I’ve done nothing to make divorce necessary; if my spouse wants out of the marriage and files for divorce, then he/she should do so with the understanding and expectation that with the end of the marriage comes the end of any and all of my obligations to support my spouse due to the fact that he/she is no longer my spouse”;
  4. d) spouses who: don’t carry their fair share of the weight during the marriage, who don’t do their best to contribute, and/or become financially dependent upon the other spouse as a result of being lazy (as opposed to spouses who are or become, due to disabilities beyond their control, financially dependent on the other spouse); and/or spouses who abuse the other spouse and/or children, commit adultery, or waste marital resources (i.e.,, refuse to uphold their marital responsibilities with impunity); and
  5. e) spouses who are moochers in divorce when they demand that the people to whom they are no longer married nevertheless keep supporting them financially. There is something inherently unfair in that concept.

In response to these questions and concerns the best answers for me personally are:

One, if I am truly worried that my marriage could end in divorce to a gold digger, the solution does not lie in trying to figure out a way to protect my assets but in not marrying the suspected gold digger.

Two, I did not marry to keep tabs on how much I have to lose in divorce. Yes, there are risks in trusting my spouse with my welfare (both physical and emotional), but the opportunity to enjoy a happy marriage is worth the risk to the right person.

Now please understand: I get that sometimes you can do everything right and marry someone who was great but who later changed and turned on you. That is sad, but not enough of a reason to avoid marriage, in my opinion. Well-rounded married people are generally much happier than well-rounded single people. Do not deny yourself the joys and blessings of marriage out of the fear of divorce. There is no meaning to success without the risk of and the fight against failure.

Three, there is no more reliable and cost-effective way to protect your assets in divorce than with some wise financial planning and a well-drafted prenuptial agreement.

Warning: even the most well-drafted prenuptial agreements are not iron-clad, but they are better than nothing (far better) if you are concerned about protecting yourself from being raped and pillaged financially in divorce.

Utah Family Law, LC | | 801-466-9277

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Can you place a lock on your home PC pending a divorce?

Can you place a lock on your home PC pending a divorce?

I will answer this question for the jurisdiction where I practice divorce and family law (Utah), but my answer is likely correct for most jurisdictions (check with an attorney in your particular jurisdiction to be sure):

Yes, UNLESS the court has previously issued a valid order barring you from placing a Lock on your PC.

Bear in mind, however, that just because you placed a lock on the PC or installed other security measures on the computer to prevent access to its data, that does not mean that you can hide that data forever. If a court orders you to release the computer (or in these days, your password for access to your cloud drive) to your spouse’s expert for the purpose of inspecting and/or copying the hard drive/cloud drive, the court can do that, and if you refuse to comply with the court’s order you can be held in contempt of court, which could lead to fines, jail, denying you the opportunity to present certain evidence or any evidence in your case, or the striking of your pleadings and the entry of default judgment against you.

Note also that if you have incriminating/adverse evidence on your PC(s)/cloud drive(s) and are thinking of wiping them to keep that evidence from your spouse or the court, that’s illegal. Not only illegal but often extremely difficult to truly delete permanently. So if you try to wipe the data and get caught, that’ll likely get you in trouble for “spoliation of evidence”.

See Utah Rules of Civil Procedure, Rule 37(e)

(e) Failure to preserve evidence. Nothing in this rule limits the inherent power of the court to take any action authorized by paragraph (b)* if a party destroys, conceals, alters, tampers with or fails to preserve a document, tangible item, electronic data or other evidence in violation of a duty. Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system.

Utah Rules of Civil Procedure, Rule 37(b) provides:

(b)(1) deem the matter or any other designated facts to be established in accordance with the claim or defense of the party obtaining the order;

(b)(2) prohibit the disobedient party from supporting or opposing designated claims or defenses or from introducing designated matters into evidence;

(b)(3) stay further proceedings until the order is obeyed;

(b)(4) dismiss all or part of the action, strike all or part of the pleadings, or render judgment by default on all or part of the action;

(b)(5) order the party or the attorney to pay the reasonable costs, expenses, and attorney fees, caused by the failure;

(b)(6) treat the failure to obey an order, other than an order to submit to a physical or mental examination, as contempt of court; and

(b)(7) instruct the jury regarding an adverse inference.

If you try to wipe the data, get caught, and the data is recovered, not only will that get you in trouble, but you will have made such illegal efforts in vain, AND the fact that you tried to hide/destroy it will only intensify the court’s suspicion and animus toward you and damage—potentially fatally—your credibility.

Bear in mind that hacking your spouse’s passwords can be (and usually is) illegal:

Utah Family Law, LC | | 801-466-9277

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To whom do you turn to when the police won’t protect you from your ex?

I am a domestic relations attorney. With this in mind, and if you are convinced that you don’t have enough evidence to obtain a restraining order, my answer to your question is:

You move.

Easier said than done, I know, but it’s still easier (and less discouraging, futile, and frustrating) than trying to force law enforcement officers to help you.

Even if you obtained a court order (ooooooh, a court order!) that “compelled” law enforcement officers to help you, chances are that the court would not enforce the order, if the law enforcement officers to whom it is directed refuse to help you.* Then factor in the time and effort (and money, if you hire an attorney to help you obtain the order) that goes in to seeking such an order, and it makes more sense to invest that time, effort, and money into doing something that works, something that has a much higher potential for success (if by “success” you mean getting away from your stalker/harasser/tormentor to safety and peace).

*Of course, this kind of law enforcement officer is too smart to blatantly refuse to help you. Instead, you’ll get the bureaucratic/administrative run around and the cops will play dumb (“this is a civil matter, ma’am”), so that they maintain plausible deniability. If that doesn’t work, they’ll threaten to arrest you (“disorderly conduct” and “disturbing the peace” are popular threats, as is “false report”) if you try to insist upon them enforcing your order.

Frequently, the best course of action is not to seek vindication through the legal system, but to extricate yourself from it. No, I am clearly not urging to violate the law, I am showing you that the legal system often disappoints. So if you can help yourself better than the legal system can help you (without being an outlaw, of course), then help yourself.

Utah Family Law, LC | | 801-466-9277

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Can I protect marital assets from my spouse by “temporarily gifting” them?

Can I protect marital assets from my spouse by “temporarily gifting” assets to somebody else until after the divorce is final?

Can you? Like is it doable? Sure, you can do it. And many divorcing people do this very thing successfully (meaning they get away with it).

But is it legal? No.

Translated, your question really means: “Can I hide or hog marital assets from my spouse by falsely claiming to have “gifted” the assets to someone without ever intending to give the assets away but in fact intending to get them back after falsely claiming to have gifted them away?”

As you might imagine, this has been tried before. Courts and legislatures have noticed this kind of thing is tried all the time, which is why it’s illegal.

There’s even a term for it: fraudulent transfer. A fraudulent transfer in divorce occurs when one spouse someone knowingly transfers ownership of marital property in an attempt to deprive the other spouse of his/her portion of the ownership or value of the marital property.

Utah Family Law, LC | | 801-466-9277

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