In my previous post, I discussed the Virginia case (Lester v. Allied Concrete) where an attorney and client were sanctioned for deleting a Facebook account and providing misleading answers regarding the existence of a Facebook account among other questionable behavior in the case. The next logical question is “what should I tell my client?”

Be warned that my opinion is NOT the opinion of the North Carolina State Bar. I can have an opinion, but let’s face it, my opinion carries little weight. At the end of the day, only the State Bar or a Judge can levy sanctions or decide your fate. Before you answer any question of this nature, you should review the ethical rules and call the State Bar to obtain guidance.

Now, back to my opinion . . . if a client asks you if he should edit his past social media, I would suggest that you talk to him about the Virginia case and any other cases you can locate on the issue. I would not tell the client to destroy anything. I would also advise him about the doctrine of spoliation of evidence and discuss steps he should take to preserve evidence. A client may be frustrated that you are not “helping” him out, and the client may even fire you as an attorney. Consider that firing a blessing as you do not want to choose your client’s goals over your ethical obligations.

When I talk to my client about social media, I address future behaviors.  I believe that unless there is some type of smoking gun on these types of forums, a client can explain any previous questionable behaviors. For example, if a client tweeted that her husband is “a tool of a parent” because he “puts his Wh*re first over their son,” I would have the client testify that she was mad and spouted off thoughts without thinking.  I would also have her testify about how she has learned that is not appropriate behavior, etc. Asking for forgiveness can go a long way especially if there is not a lengthy history of these actions.

For most lawyers, social media is the next frontier. When we start in a new frontier, some lawyers can be flippant about the significance of the area. Being flippant in this area could cost you as it did in the attorney in the Lester case.

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As a divorce attorney, one of my initial steps with any client is to ascertain the person’s social media usage. On the firm’s intake form, I ask the person to advise if he or she tweets, has a Facebook account, has a personal blog, or has a Linkedin page. Likewise, I ask if his or her spouse has any of these accounts. I need to know where potential evidence against my client or the other party may appear, and I advise my client to act appropriately on these accounts. “Act like a Judge is watching every single post” is my general advice to a client.

I have never had a client ask me about what he or she should do regarding past posts; however, you cannot advise a client to destroy evidence, right? Recently this issue came before a Virginia court in the case of Lester v. Allied Concrete Company. As part of discovery, defense attorneys sought information from Plaintiff’s Facebook page. Plaintiff’s attorney incorrectly surmised that if Plaintiff deleted his Facebook account PRIOR to the signing of the discovery answers, the Plaintiff could truthfully answer that he did not have a Facebook account. In addition, after being served with discovery regarding the Facebook account, Plaintiff’s attorney instructed his support staff to tell the Plaintiff to “clean up his Facebook account.”

These actions were only the tip of the iceberg when it came to the Plaintiff’s behavior and the behavior of Plaintiff’s attorney.  At a later deposition and at trial, Plaintiff denied having a Facebook account. Clearly, even though arguing semantics is part of an attorney’s job, this type of behavior is questionable at best. Judges do not like questionable ethical behavior, and as a result, Plaintiff and his attorney were sanctioned, heavily for these actions. In addition, the Order referred the attorney’s behavior to the Virginia State Bar.

What do we take away from this case? Deleting social media (Facebook pictures, tweets, blog posts, etc) can be seen as spoliation of evidence. As an attorney, we do not want to dabble in the gray area of ethics. It is important to understand that advising your client to edit past behavior on social media is just like telling your client to destroy critical documents, which we all know we should not do.

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Collaborative law is a method of resolving disputes in a divorce situation that requires all parties to be focused on a mutually acceptable resolution.  This method draws on the theory of mediation by remaining focused on resolving disputes outside of litigation.

This method of dispute resolution also adds the requirement that attorneys must withdraw from representation if either party files a lawsuit. This mandatory withdrawal is an incentive to keep the parties at the negotiating table. Retaining a new attorney to file a lawsuit is going to cost additional money, so the incentive is to remain at the negotiating table so that you will not lose your collaborative lawyer.

Collaborative law began in Minneapolis in 1990 with attorney Stu Webb, and it has now spread to almost every state. In Wake County, there are many lawyers who have taken collaborative law training and hold themselves out as collaborative lawyers. There are even some collaborative law groups of attorneys that may physically be in the same building or may be loosely related and familiar with working with the others in this group.

This method is part of the bigger label of alternative dispute resolution, which includes the process of mediation and arbitration. Over the past ten years, the growth of alternative dispute resolution in family law has grown tremendously as courts have become clogged and people have become frustrated with the legal system and legal fees.

If you are interested in utilizing collaborative law in resolving your separation or divorce, call Frye Law Offices. Our firm offers knowledge, experience and personal attention at a time when you need it most, and our firm can help you determine if the collaborative law method is the best way to address your needs.

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In Wake County, we have a Family Court system, which means that we have one judge per family and a separate support staff for each judge. If you file a lawsuit in Wake County which contains claims for child custody, child support, spousal support, or equitable distribution, you will be assigned a Judge. Currently, we have four different judges. Once you are assigned a Judge, your case will always have this Judge unless he or she is no longer on the family bench or you are assigned a new Judge for other reasons. If this Judge is on the bench five years from now, that Judge will hear your case.

Each Judge has her own clerk who handles the administrative movement of items. These clerks do the hard work of managing the Judge’s schedule, handling communication between most attorneys/parties and the Judge, and making sure that all Orders are provided to all parties. Clerks often can give you good practical advice on how to move forward with your case in an effective way instead of spinning your wheels in the wrong direction. Clerks cannot and will not give out legal advice, but each clerk can give you practical advice on how to navigate the Family Court System. Information on the Judge’s schedule and contacting the appropriate clerk can be found at the following website: www.wcfcc.com

Family Court also operates by a specific set of rules. These rules can be located at www.nccourts.org under tabs for Court or a search on local rules. These rules cover the 10th Judicial District, which is what covers Wake County, and provides rules and forms to be used.

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One of the most cost effective ways to communicate with your attorney is via email.  This method can be much more affordable than phone calls or scheduling an appointment.

Why?

A phone call or appointment may take more of the attorney’s time as a conversation could develop on a topic that was not in line with your original list of questions or concerns. This time is not necessarily wasted as you or your attorney may find out information that assists in your representation; however, if your goal was to find out an answer to a specific question, you may not view this additional time as cost effective.

Some people shy away from using email because they believe it is easier just to meet or talk over the phone. The reality is that composing an email makes you compose your thoughts. Being organized and focused in your time with an attorney means that you will receive more for your dollar. Emails also have the added benefit of giving you a response that you can refer to on more than one occasion. If you are not sure exactly what was said, you can always pull the email back up and review the answer again.

Email is not always the best way to communicate; however we encourage clients to use that as one of their first methods of contact with the attorney. If you are not sure, let the attorney decide if it is best for you to speak about the issue or if email correspondence will suffice. Likewise, if you do not feel comfortable memorializing certain things in an email to the attorney, call the office and schedule an appointment. The most cost effective way may not always be the best way. Work with your attorney and their staff to determine the best way.

At Frye Law Offices, we offer you knowledge experience and personal attention at a time when you need it most. Contact our office if you need help with your family law needs and want someone to be cost effective in their representation.

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You have taken the first step and have reached out to Frye Law Offices, what can you expect now?   When you call in you can expect to speak with either Chris or Cindy, both are legal assistants with our firm.

The first question you can expect to be asked is your name and the name of the opposing party or any other parties involved in your situation.  We have had clients call in and not want to give us this information; this information is vital in determining if we have any conflicts of interest.

Once it is determined that there are no conflicts, the next step will be hearing about the initial details of your situation.  During your first phone call you can expect to be asked a fair number of questions about what is causing you to call our firm.  Our staff needs to be thorough and get as much information from you as possible so that your time with Katherine Frye or Lynn Bruce is as effective as possible.  Please remember that any information discussed with either of our two legal assistants will be in confidence, meaning the only person they will discuss your situation with is the attorney with whom you are scheduling an appointment.

Once the information is gathered an appointment will be set up with the Katherine or Lynn. Our staff will provide you directions and ask for a secure email address so that we can send you some initial information prior to your appointment.

At Frye Law Offices, we pride ourselves on having an amazing support staff. Clients have always told us that our staff has been professional, empathetic, and effective. From the first moment you contact our firm, you will find the knowledge, experience and personal attention at the time when you need it most. Please call us at 919.846.8807.

**Contributed by FLO Office Manager, Christine Universal

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A Connecticut judge recently ordered divorcing parties to exchange passwords for Facebook and dating websites so that attorneys can gather information for the pending litigation. The Order requiring the exchange of information did clarify that the password was to remain with the attorneys and that parties were not to post anything to the other party’s website with that password information.

I must say that this is a new step to me. I have often had clients obtain information from the other party’s Facebook or other social media source; however, I have never thought of asking the other side to turn over his or her passwords so that I could have full access to the account and account history.

Generally, when cases are in the discovery phase, which means the information finding part of litigation, parties are asked to turn over material that responds to the divorce request. For example, a party may be asked to turn over all audio recordings that he/she has of the other party. In financial cases, bank statements are often provided, not access codes for online banking! The request in this case was to turn over a different type of information, which is very interesting.

Maybe with this different type of medium (social media), Judges will take a different look at what is required to be turned over as part of the discovery process. I cannot predict the future on where social media and divorce will go, but this case is just another reason why I tell my clients that he/she should just sign off social media for the duration of litigation.

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The prospect of a divorce generally brings a range of emotions to people. Some people are happy, some are scared, and some are ready to get married again! In my last two posts, I have discussed the significance of finding out if you are actually divorced or not, and the potential problems in quickie divorces from other countries. Now, I want to address what rights you lose upon a divorce so that you understand the significance of

If you or your spouse have a claim for spousal support from the other or a claim for the property/debt of the marriage to be divided, it is imperative that you be careful in your pursuit of a divorce. In North Carolina, claims for spousal support and property division (aka equitable distribution) are LOST upon the entry of your divorce. These claims are lost unless one of you has filed a claim for either of these items. If you have, either in the divorce action or in a separate action, your right to pursue these claims is preserved for further disposition by the Court. If you have not, these claims are lost and gone forever.

Property and spousal support claims are generally the most significant rights I detail to clients when a party is considering a divorce filing; however, there are other rights or benefits of marriage that are dissolved upon the entry of divorce. Other significant ones are rights to inherit or administer the estate of your spouse and the right or obligation of the other spouse to provide you (or be liable to a hospital for) medically necessary expenses.

Divorce really does change everything, so it is important not to rush into filing for divorce until you or your client are sure that everything else is in good shape regarding the ending of the marriage. It is better to be safe than sorry . . . . .

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Often we have clients walk into our office assuring us of many things as the truth, and often we believe them on the small things. Of course, when it comes to specific facts related to why they arrived in our office, we will turn a close eye, which is a result of our very nature as attorneys. But, shouldn’t we be careful about some of the “smaller” stuff too?

When clients say they are divorced, why should we believe that statement? Recently Lawyer’s Weekly ran an article about a guy who thought his first wife had obtained the divorced, so he decided to remarry . . . in another county. Later he plans to bring his “wife” back to the US and apply for citizenship for her based on wife status. Well, low and behold, wife had never really finalized that divorce, so new “wife” wasn’t wife at all.  The downside is that now he has huge set of problems, which are not going to be easy to remedy. The article is written in a manner to evoke sympathy for this guy, but really should we feel sorry for someone who doesn’t even know if he is divorced or not? Is someone’s marital status part of the “smaller” stuff?

So, how do we know for sure? For once, this answer is simple: obtain the certified divorce decree. Do not rely on what someone told you; just get the document. Every person who is divorced should retain a copy of this decree. If they do not have it, make sure they obtain a copy from the appropriate clerk of court.

A party’s divorce has a multitude of ramifications on these individuals’ rights and obligations. In a domestic context, upon divorce both sides’ rights to equitable distribution and alimony are lost unless preserved. Divorce can change someone’s ability to inherit, your responsibility for medical expenses, your tax filing status, ability to remarry, and many more substantial rights and obligations.

It is important to know if your client is divorced or not. As you begin your representation, ask the client to bring in proof of the divorce if any steps in your representation rely on marital status or the availability of any results would change if the person were married. For once in our world, something is simple . . . just bring in the proof.

Well, maybe it’s not that simple, but I will address the proof and validity of divorces (particularly the common foreign divorce) in the next post . . . .

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One of the most common questions I am asked, as a divorce lawyer is when am I separated? The factual scenario generally presented to me is the following: My wife and I have been having problems for years. About three months ago, I moved into the downstairs bedroom. Are we separated?

No.

I must say that I love it when the answers are simple. In family law, the answers are rarely that simple, so I am glad when I can answer in a definitive fashion.

In 1962, the Supreme Court of North Carolina answered that question in Richardson (257 NC 1962). Likewise, cessation of sexual relations does not constitute a separation. The only way to separate in North Carolina is to live in two separate residences.

In North Carolina, you must be separated for a full year before either party can file for divorce. Be careful because a “full year” means that if you separate on December 1, 2010, you can file for divorce on December 2, 2011. You cannot file on December 1. If you file a day early, that mistake cannot be cured. Meaning that if you file early, you have to dismiss your action and refile the action, which is just not the kind of pain that you want at this point.

If you have questions about whether or not you are separated, please contact our office. Our firm is experienced with divorce litigation and providing you the knowledge, experience, and personal attention at the time you need it most.

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