What would you do if you discovered your spouse was being unfaithful and you wanted rock solid evidence to present to your divorce lawyer? Be careful not to go to far into your spouse's computer or you may run afoul of applicable wiretapping and surveillance laws.

A recent federal appellate decision from the 7th Circuit in Chicago held that a wife's unauthorized access to her husband's email account possibly violated the federal wiretapping laws. The couple was embroiled in a high-conflict divorce featuring allegations that husband was a serial adulterer.

In the county family court, husband sought discovery of all evidence that supported wife's adultery allegations. Wife obliged, producing a series of damaging emails between husband and several other women. During this discovery, husband learned that wife placed an "auto-forward" rule on husband's email so that, unbeknownst to him, all of his emails were forwarded to wife.

Getting creative, if not desperate, husband filed a lawsuit in federal court against wife and her divorce attorney on the basis that wife's capture of husband's email, and her lawyer's disclosure in the divorce proceeding, violated the federal wiretapping and surveillance act. The federal district court, however, dismissed husband's federal lawsuit.

In reversing the lower court on appeal, the United States Seventh Circuit Court of Appeals held that husband adequately pled a claim under the federal law; but that the case against the lawyer was properly dismissed. The case features a legalistic argument under the Wiretap Act regarding whether wife "contemporaneously" intercepted the emails; this debate was found to of little import by the 7th Circuit's panel in reversing the lower court and remanding the case against the wife.

So now, wife will need to prosecute her divorce while simultaneously defending husband's federal action. The case stands for the proposition that it pays to abide by the rules when conducting discovery in a lawsuit; even a divorce that features a serial cheater.

Post #573

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Since 2001, AshleyMadison.com has been around for married cheaters. The controversial website touts discrete electronic profiles for married folks interested in committing adultery.

Four years ago, the Canadian business attempted to go public on the Toronto Stock Exchange but could not raise sufficient capital or interest. Now they're at it again, this time planning an IPO for London, England sometime later this year.

The risque dating website claims over 35-million members and posted revenues of $115 million last year. They hope to raise $200 million in their IPO.

Perhaps the British and European dating markets are more sophisticated, but we here at the Law Blogger have to wonder about the public value of a company with Ashley Madison's business model. Company executives have long-admitted they sell the "darker side of dating."

Classically understated; folks get killed out that way. Also, they are selling a product that arguably encourages the erosion of the institution of marriage and that is illegal in many jurisdictions, including here in Michigan.

The company does have its marketing analytics down to a fine yet devious art form. If a person gets married in the United States and files their marriage license with the county, as required in most states, AM obtains that now-public information and begins sending advertisements and other electronic communication to individuals with a certain type of profile.

The illegality of adultery does not bother company execs who point to the case of South Korea. When AM began its operations in South Korea, where adultery was recently illegal, government censors blocked the web site. But then the Supreme Court in South Korea changed the 63-year old law, and AM has been allowed to operate with impunity.

In going public in London, the company will be directly competing with the French web site, Gleeden. One thing is for sure; across the globe, Ashley Madison has become synonymous with marital infidelity; apparently, that's a billion dollar a year industry.

For our part, we here at the Law Blogger have handled more than a few cases where one spouse alleges the other has created a profile on the Ashley Madison website. Therefore, despite the need to diversify the nationality of our investment portfolios, we will not be among the investors should this company go public.

www.clarkstonlegal.com
info@clarkstonlegal.com

In France, fidelity in marriage is written into the French civil code.  So when racy advertisements began sprouting-up in the Metro last year touting an adultery website, the Association of Catholic Families not only took offense, it filed a civil lawsuit.

Legal scholars believe that the suit may get some legs.  At issue is whether a website can promote adultery when marital fidelity is a matter of law.

As part of its promotion, membership in the website, Gleeden.com, is fee to women and advertises on its home page that it is the only dating website made by women.  Thus, only men must pay a fee in order to access the site and view married women's profiles.

Online since 2009, the site boasts over a million members in France alone, with millions of other members spread across Europe.

In France, the legal system is made up of codes that are the rough equivalent to our federal statutes and regulations.  Unlike our common law system, however, a judge does not have broad interpretive powers. Nevertheless, a case like this demands a jurist to take into account, "the changing moral values of modern society," according to a French divorce lawyer quoted by the BBC.

The Catholic group's law suit against the site claims that while many other dating websites promote sexual relations, the very business model of Gleeden incites married couples to violate their civic duty to maintain fidelity to their spouse.

There are similar sites to Gleeden here in the United States. When a married couple files their marriage license with their state, for example, Ashley Madison spam often quickly follows.

Although rarely charged, adultery remains a felony written into the Michigan Penal Code.

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Imagine the person with whom you are having an affair does not accept your effort to break it off.  Imagine further that you've had the bad judgment to allow this person to take nude digital images of you during your tryst.

What seemed like a good idea in the heat of the moment now threatens to ruin your life.  Can you convince a court to enjoin this person from creating a web site monument to your activities?

The Maine Supreme Judicial Court said, "yes" in the case of Ellen Clark vs John McLane.  The following salacious facts are taken directly from the Maine High Court's opinion:

Clark and McLane were engaged in an intimate relationship for several months from 2011 to 2012.  On January 13, 2013, after their relationship had ended and after Clark had notified McLane’s wife of the affair, McLane sent an email to Clark containing a litany of insulting and derogatory remarks.  He informed her that he and created a website in her name on which he planned to post nude photographs of her, and that he was also setting up accounts with three major search engines so that any search of her name would first yield a result for the website that he had created.  In addition, he told her that he was creating an account on a video-sharing website in her name, that he would be sharing the websites with her friends, that he had already gathered eighteen or more email addresses from her work colleagues to share the websites with them, and that potential employers would see the websites as well.  McLane further stated that ‘[g]uys will have your cell number, as well as your work number to a hold of you [sic] and ask you out.’  McLane provided a link to a website in her name that he had already set up; it consisted of a single page stating, ‘The naked pictures of EJ Clark will be coming soon…along with her cell phone number and her work number for your to call and arrange a date.’

Wow, jeeze and yikes all in one gasp.  Yes, this has really happened folks; this guy is out there, in spades.

The trial court enjoined McLane from having any contact with Clark, so she will not need to worry about future heart-stopping emails from this jerk.  The court also enjoined him to, "immediately disable any sites/efforts designed to disseminate any information about [Clark] to others..."  Incredibly, McLane appealed.

The legal question posed in the appeal is whether a court sitting in equity can enjoin a person from abusive conduct under facts such as those set forth above which, by the way, are undisputed.  McLane conceded that he sent the email referenced above, arguing in a two-page appellate brief that, "the ONLY conduct appellant engaged in was to send an inappropriate email and create an empty website."  Really...?

In rejecting McLane's argument that the undisputed facts of this case are insufficient to support a finding that his conduct was abusive, the High Court affirmed the injunction against McLane on the basis of a plain reading of Maine's "protection from abuse" statute that procribes a "dating partner" like these two lovebirds from committing "any form of abuse" to the other partner.  The Clark decision deconstructs the term "abuse" in excruciating detail.

Calling a spade a spade, what Mr. McLane threatened to do to his former lover was abusive; even the threat of such conduct was abusive in our simple mind over here at the Law Blogger.

But here's the real lesson, and its for folks like Ms. Clark: when you are venturing out into the choppy waters of infidelity, take exceedingly great care in your selection of a fellow sinner, as the consequences flowing from your selection can easily swamp your ship.  The other corollary to this tale is that digital pics in the wrong hands can cause great pain thus, think twice before allowing someone to record your image.

www.clarkstonlegal.com
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The Sixth Commandment proscribes adultery unequivocally: "Thou shall not commit adultery".  Many people consider the Ten Commandments to be the laws of God.  The subsequent laws of man, however, do not always follow suit.

In 2011, the Michigan Legislature amended [rewrote] the Paternity Act to open the door, slightly, for an unwed biological father who sires a child with a married woman.  The bachelor's parenting rights, however, are contingent upon the consent of the mother.  

The new paternity laws have given rise to a few cases that have garnered media attention.  Fathers that have availed themselves of the new law in order to correct one of the more painful gaps in our tranditional family laws; denying standing to any putative father who's baby-momma was married at the time of birth. 

The new paternity leglislation basically thanks the bio-dad for his sperm donation, but does not afford him any substantive parenting rights without the mother's consent.  If the bachelor can offer some proof to the family court that he was clueless about the baby momma's marital status, he has standing to bring a claim under the paternity act.

Aaron Grimes filed a case when his relationship blew-up.  Grimes conducted a two-year relationship with a woman he knew was married.  The couple took trips together, attended family functions, and otherwise held themselves out as a couple.  According to Grimes, she never wore her wedding ring.

When the baby was born, the mother had a change of heart according to Grimes; she reconciled with her husband, hired a lawyer, and has dened Grimes any contact with his son. 

Father's subsequent paternity cause of action was immediately dismissed by the Wayne County Circuit Court.  Dad is considering challenging the provisions of the new paternity act.

Compare Grimes' situation with Daniel Quinn, who, unlike Grimes, was able to claim cluelessness about his baby mamma's marital status; she was [secretly] married to a man doing time in prison.  Under the present legislative scheme, the bachelor's knowledge of the marriage is the deciding factor.   Unless the alleged father is in the dark, the baby momma is driving the bus.

So the difference goes to the heart of modern adultery.  To commit the sin, indeed, the felony, of adultery, one must presumably have the "mens rea"; the proverbial guilty mind.  If you do not know if your woman is married, are you nevertheless comitting the sin of adultery in the eyes of God; in the eyes of the law?

This is what the Michigan legislature has recently contended with; an imperfect piece of legislation, to be sure.  We here at the Law Blogger wish that the new act was more direct in advising the court to consider the best interests of the child rather than the relative standing of the parents.  Also, the paternity act should first "disestablish" the rights of the baby momma's husband prior to allowing an alleged father to proceed on a paternity claim.

The one-year limitation for a claim to be filed seems quick and too arbitrary; often, an alleged or putative father would have no reason to suspect his baby's momma is married.  Closing the door so fast on a bio-dad seems harsh.

Thus, the drama is destined to continue.  To men: the best course of action is to be very sure of the marital status of your partner prior to beginning the procreation process.  If you are in the position of Mr. Grimes, however, and you know that your partner is married, you need to also know that the current paternity act allows her to drive the bus when the baby comes.

To women: be sure to keep your child's best interests in mind and ask whether it is better in the long-run for your baby to know his or her true paternity. 

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This post is the first in a three-part series addressing divorce in the context where one or both spouses are in the military.  With so many returning servicemembers, our hope is to provide some guidance for those who find that their pre-deployment marriage is no longer tenable.

Divorce is a painful enough when it’s relatively straightforward—a couple living in the same state, no children, pre-nuptial agreements, etc. However, when one of the divorcing spouses is a member of the armed services, a series of other complications exist. 

Laws, codes and manuals all contain regulations intended to protect both service members and their soon-to-be former spouses. Generally, the various branches of the armed services view divorce as a civil matter best left for state family courts to sort out. One exception, where the armed services can become directly involved (addressed in a later post), involves adultery.

What Law Governs?

First things first.  What law do we need to look at when diving into divorce among military members? For the most part, the laws of the state court where the divorce is occurring govern divorces involving military spouses. However, there are two federal statutes that anyone facing the prospect of a military divorce should be aware of.

The first law is the Uniformed Services Former Spouses Protection Act (USFSPA). Passed in 1982, the law serves the exact function its title suggests—protecting ex-spouses by ensuring they don’t lose entitlement to benefits gained from having been married to a military spouse. 

In particular, the law allows state courts to divide military pensions as marital property. This does not mean that an ex-spouse will automatically receive a portion of her service member husband’s (or visa versa) benefits. However, it does give the courts the option to award the ex-spouse a portion of the benefits if the laws of the state and the interests of justice allow it. There are certain limitations to the amount of benefits an ex-spouse will receive, but that will be discussed later.

Another law of import is the Servicemember’s Civil Relief Act. One of the main purposes of this law is to suspend court proceedings that would “adversely affect the civil rights of service members during their military service.” In other words, the law protects those in the military from the proverbial rock and a hard place that can occur when military service conflicts with pressing civil obligations, in this case, divorce proceedings. Articles 522 and 524 are particularly pertinent.

Section 522 allows any active or recently released (active service must have ended within the previous 90 days) service member to ask for a stay of any civil proceedings. The service member will have to explain how “current military duty requirements materially affect the service member’s ability to appear and stat[e] a date when the service member will be available to appear.” Section 524 allows the court, either on its own or at the behest of a service member, to stay a judgment or vacate any court order (such as a garnishment) if it can be shown that the member’s active military service prevented him or her from complying with the original judgment or order.

There are a few other important documents that require mention in any discussion of military divorce procedure. The Uniform Code of Military Justice gives military tribunals jurisdiction over all armed service members. While it generally does not cover divorce, there is one provision that is often used to prosecute adultery, which we will tackle later. The Manual for Courts-Martial is an executive order that provides administrative rules to enforce the UCMJ and also has a section directly addressing adultery. 

Over the next two weeks, the Law Blogger will post the rest of this series for our readers affected by, or interested in the military divorce.

info@clarkstonlegal.com

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Please; Not in the Marital Bed

Always poor judgment, sometimes an adulterous liason makes it into the marital bed.  If the cuckholded spouse learns of the at-home trist, the ensuing divorce is very nasty.

This circumstance was recently featured in the NYT.  The article is of note in this blog mostly because it quotes a well-known Michigan divorce attorney; Richard Roane of Grand Rapids.

With New York finally following the rest of the states in 2009, all 50-states now have "no fault" divorce laws on the books.  Each state is different, however, as to how adultery, if and when proven, is factored into the divorce judgment.

The Michigan Penal Code has long-contained a chapter on adultery, defined as, "the sexual intercourse of 2 persons, either of whom is married to a third person." The scope of the criminal conduct includes divorced but cohabiting persons. The statute requires the cuckolded spouse to swear-in as the complaining witness and has a brief statute of limitation; one year.

The adultery statute merged into the penal code in 1931. The caselaw on this "consensual" crime goes back to 1884, in a case from Berrien County; People v Hendrickson.  That case stands for the evidentiary proposition that the testimony of the un-married participant in an adulterous union (the "other woman") can supply the requisite testimony to support a conviction, subject of course, to cross examination.

In the here and now of 2011, Michigan's family courts have adhered to the "no-fault" provisions of the divorce statutes. Adultery is now a matter of private morals, with family court judges free to exercise their discretion regarding the weight to put on allegations of adultery and their attendant consequences in matters of child custody and property division.

State Senator Ron Jelinek has proposed legislation seeking to abolish adultery as a felony.  The proposed legislation, however, has not gone anywhere since being referred to the Senate's judiciary committee shortly after its introduction in February 2009.

Occasionally, the adultery statute is cited in civil cases seeking to apply what is known as the "wrongful conduct" rule which blocks a plaintiff's attempt to gain from an adulterous relationship.

Immoral, but all too common, adultery has always posed a serious threat to the traditional family unit. Adultery, however, is a rarely charged felony. Thus, it's persistence within the penal code, particularly the anti-cohabitation provision, bloats the Michigan Compiled Laws with anachronistic provisions. Transgressions are best addressed within the discretion of the family court judges.

http://www.clarkstonlegal.com/

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A controversial new application for Motorola's popular Droid phone has apparently been pulled before it had a chance to hit the cell phone application market-place.

The idea behind the "Secret SMS Replicator" application is to forward text messages from the target phone to a designated phone.  What's more, the application on the target phone is invisible and cannot be detected.

Similar applications have failed Apple's application store approval process.  In the case of the SMS Replicator, Google said the covert application violates the "Android Market Content Policy."

Just because this application did not make it to market does not mean it won't be applied.  The technology is available to those who do not mind installing rogue applications.

In Michigan, it is illegal to download the emails of another person without permission by using spyware and keystroke programs.  These products, however, remain on the market.

Perhaps the best policy if you are in a marriage or a committed relationship is to stay faithful.  On the other hand, if you believe your spouse or significant other has strayed, or is thinking of doing so, it may be time to move on through separation or divorce.

Often, a cuckholded spouse feels the need to acquire rock-solid proof of infidelity. Sometimes, this is sound pre-divorce strategy. Getting the goods on your significant other, however, should never come via breaking the law.

Good luck out there!

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State Senator Ron Jelinek (R - Berrien County) has introduced a bill in Lansing to repeal adultery as a crime. The bill, which has a companion in the Michigan House, has been referred to the Senate Judiciary Committee. The bill, expected to be presented for the Governor's signature sometime during this legislative session, could become law in 2009.

The Michigan Penal Code has long-contained a chapter on adultery, defined as, "the sexual intercourse of 2 persons, either of whom is married to a third person." The scope of the criminal conduct includes divorced but cohabiting persons. The statute requires the cuckolded spouse to swear-in as the complaining witness and has a brief statute of limitation; one year.

The adultery statute was codified into the penal code back in 1931. The caselaw on this "consensual" crime goes back to 1884, in a case coming out of Senator Jelinek's own Berrien County. The case, People v Hendrickson, stands for the evidentiary proposition that the testimony of the un-married participant in an adulterous union can supply the requisite evidence to support a conviction.

In the here and now of 2009, Michigan's family courts have adhered to the "no-fault" provisions of the divorce statutes. Adultery is now a matter of private morals, with family court judges free to exercise their discretion regarding the weight to put on allegations of adultery and their attendant consequences in matters of child custody and property division.

Senator Jelinek's proposed legislation seeks to align the penal code with the unfortunate reality of post-modern society. Immoral, but all to common, adultery has always posed the biggest threat to the traditional family unit. Adultery is a rarely charged felony, however, thus, it's persistent inclusion within the penal code, particularly the anti-cohabitation provision, bloats the Michigan Compiled Laws with anachronistic provisions. Transgressions are best addressed within the discretion of the family courts.