With texting, email, and Facebook Messenger rising in popularity as methods of communication in relationships, so is their use as divorce evidence. As divorce attorneys, we used to look for evidence in files, notebooks, ledgers, memos and photo albums. Now we have to also look at emails, text messages, Facebook, LinkedIn, Snapchat, Twitter, Instagram, YouTube, and even Pinterest for what divorce evidence that is called Electronically Stored Information (ESI). Thousands of courts across the country have recognized that parties have an obligation to preserve and produce electronically stored information. When the prospect of divorce litigation is present, parties are required to preserve documents that may be relevant to the issues to be raised. Failure to do so may result in the court finding of spoliation of evidence. Spoliation of evidence is the intentional, reckless, or negligent withholding, hiding, altering, fabricating, or destroying of evidence relevant to a legal proceeding). This duty to preserve evidence is triggered when there is probable, likely or reasonably anticipated litigation. Divorce Evidence Includes Electronically Stored Information (ESI) Today most aspects of our lives are documented and captured somewhere as electronically stored information - from online financial records and health information to various communication through emails, text messages, and social media posts. If you or your spouse has filed for divorce, know that you must preserve and if asked, produce all of your electronically stored information including things like social posts or Facebook Messenger. This means many forms of electronically stored information (ESI) will be subject to review in a divorce and could be admitted into court as evidence. Before divorce evidence is admissible in court, it must be authenticated, or shown that it is what you are claiming it to be. For electronically stored information such as text messages or Facebook messages, there are distinctive characteristics for each piece of evidence that make it authentic. The distinctive characteristics of a text message include the context of the message (as it relates to the litigation), who owns the phone where the text message lived, the identification of the sender, time, date and often times responses back to that sender. To get a text message entered into evidence, you must establish the following:
Your Texts, Emails, and Facebook Posts Can (and May) Be Used Against You Text messaging and other electronic communication like social media has become the main communication tool and often leads to evidence that can prove harassment, abuse or undermine credibility. Consult a lawyer who will help you determine if text messages you have sent or received will be helpful to your case and how it may or may not influence the court. At Anderson & Boback, we’re passionate about solving complex family law issues for our clients and their families throughout Chicago and the greater Chicagoland area. Contact us today for a confidential consultation when you have questions or concerns about divorce and the various types of communication that is admissible as divorce evidence. THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/divorce/texts-emails-facebook-divorce-evidence/
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Chicago natives may now know that Cubs player Ben Zobrist filed for a legal separation from his wife, Julianna Zobrist, in Tennessee, citing marital misconduct. Meanwhile, Julianna Zobrist has filed for dissolution of their marriage in Cook County, Illinois. Local reports seem to indicate that Ben Zobrist filed before Julianna Zobrist, but it is unclear since the filings were so close together. Of course, the legal question in all of this is, which state has divorce jurisdiction?
Divorce Jurisdiction and Illinois Residency Requirement In order to file for divorce in Illinois, you have to be a resident of the state of Illinois for ninety (90) days or more. So, clearly, by Ben Zobrist's wife filing for divorce in Illinois she is alleging that she is an Illinois resident. Tennessee, presumably, has their own residency requirement for filing separation or divorce proceedings. Exceptions to “First to File ‘Wins’ Jurisdiction” Generally speaking, the first petition filed “wins” jurisdiction, with some exceptions. The first person to file usually secures jurisdiction in the state they filed in, but this can be challenged. For example, if someone files first, but in a state where they do not meet that state’s residency requirement, that could be grounds to have the first filed petition dismissed, depending upon local laws. “Home State” Divorce Jurisdiction When Children are Involved Further, if there are minor children involved, their Allocation of Parental Responsibilities (formerly known as Custody) has to be adjudicated in their “home state”. The home state is the state where the minor children resided for the six (6) months directly prior to filing (periods of temporary absence for vacations, etc. are not included in the six-month calculation.) So, even if the first filed petition would technically win jurisdiction, if there are minor children and that first filed petition wasn’t filed in the children’s home state it gets complicated. You are faced with one court deciding the merits of the divorce like property division and support, and a different court in a totally separate jurisdiction deciding on a parenting time schedule and allocation of parental responsibilities (previously known as Custody in Illinois). That is a lot of attorneys and a lot of litigation between two different states. So, generally in those sorts of proceedings, the person who filed in the divorce jurisdiction that is not the home state (even if it was the first filing filed) will dismiss their action voluntarily so that everything can be litigated in the same state, to conserve resources. Divorce Jurisdiction Complicated By Unique Property Division Issues Another scenario where first to file may not win jurisdiction is in situations with unique property division issues. For example, some military pensions and retirement accounts can only be divided by a specific state, until the former/current service member agrees to the division. In that scenario, even if a spouse was “first to file” if it wasn’t in the state which has authority to divide the spouse’s military retirement, the person may dismiss their case in favor of going with the jurisdiction which can divide the asset. It will be interesting to see how the jurisdictional issue in the Ben Zobrist divorce (or legal separation) case is resolved. We suspect that someone will file a Motion to Dismiss the other’s case; or, that someone will withdraw their petition, but it certainly raises serious questions about competing jurisdictions in domestic relations proceedings. In the meantime, while we wait to see what happens with the Zobrist divorce jurisdiction battle - Go Cubs, go! THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/support/ignoring-income-withholding-order-pay-penalties/ |
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