What is considered proof of adultry? How does dicovery process to find assets wo...

[setmefree]

Dear Scorateaser,
Thanks for all of your previous advice.
We live in Virginia and going through separation and divorce.
Wife continues to make false accusations such as me having hidden assets (completely untrue) and adultery (again wholly false). She threatens to subpoena my telephone records or produce pictures of me with people in restaurants having a drink or dinner to prove adultery!

Questions:
Can she subpoena my cell phone records? I talk to many, many people on the phone all day, can she claim adultery just based on telephone records?

How does discovery process to find assets work?  Do they look for open accounts?  Closed and open accounts? How far back do they go?  I need to prepare.

Thanks a lot in advance.

[socrateaser]

>Questions:
>Can she subpoena my cell phone records? I talk to many, many
>people on the phone all day, can she claim adultery just based
>on telephone records?

If adultery is at issue in your case, and reviewing your cell phone records might reasonably obtain the phone number of the party with whom you were/are carrying on an affair, then those records may be demanded from you, or subpoenaed directly from the wireless company.

>How does discovery process to find assets work?  Do they look
>for open accounts?  Closed and open accounts? How far back do
>they go?  I need to prepare.

You will be ordered to produce records for all of your assets/liabilities, including your tax returns for the past 2-3 years. In a case where a lot of money is at stake, a forensic accountant would analyze the various records and try to determine if any money was unaccounted for. Assuming that there was something funny, opposing counsel would set a deposition and question you about your finances, in an effort to trip you up so as to gain some idea of where you might have hidden any valuable assets.

A particularly diligent attorney might send a subpoena to every major and minor banking and investment institution, on the theory that your name might turn up on an account. All of this would be extremely expensive.

However, if your deposition testimony and the forensics suggested credibly that some money/asset was unaccounted for and you had no explanation for its disappearance, the court could conclude simply that you are hiding the assets "somewhere" and then order you to pay the difference to your spouse, on the theory that the assets exist, and you will be forced to obtain them to satisfy the court order, or pay it back from future assets acquired.

Having said all of the above, how far an investigation might go, really depends upon the amount of assets at stake. Theoretcially, an attorney could subpoena every banking and investment institution in the world, in search of accounts matching your social security number or other identifying info. As a practical matter, unless your last name is Gates, Getty, Walton, Buffett, Rockafeller, etc., such excesses are unlikely.

[setmefree]

Dear Socratease, Thanks a lot for your response.  You say "If adultery is at issue in your case, and reviewing your cell phone records might reasonably obtain the phone number of the party with whom you were/are carrying on an affair, then those records may be demanded from you, or subpoenaed directly from the wireless company."

My concern is that the minute there is talk of divorce, men are accused of adultry and hiding assets, etc.  So:

Truly, from a legal standpoint, how can a spouse make adultry an issue? What proof or grounds is needed?

Can just accusing me of adultry entitle her to my cell phone records?

Shouldn't there be some solid grounds for her accusation?

Thank you so much.

[socrateaser]

So:
>
>Truly, from a legal standpoint, how can a spouse make adultry
>an issue? What proof or grounds is needed?

No proof is needed. If your spouse states in the pleading that you committed adultery, then adultery is an issue. To prove it requires credible evidence sufficient to place the matter fairly before a trier of fact. What's that mean? Basically, something from some disinterested/objective third party source that credibly demonstrates that you have committed adultery.

Phone records of calls to a number of different women on different occasions isn't much. Phone calls to the same woman, day after day, when that woman is not a business relationship, suggests a stronger possibility of adultery. Is it sufficient proof to find you liable for adultery? That's up to the judge. VA is a very anarchistic jurisdiction with respect to domestic relations law, so judges are more likely to find fault, and especially fault in a man. That's just the way it is, so you need to accept it as reality, whether you like it or not.

>Can just accusing me of adultry entitle her to my cell phone
>records?

Yes. Evidence is discoverable if it is reasonably calculated to lead to the discovery of admissible evidence. In other words, if the evidence requested isn't strong enough by itself, but it will reasonably lead to evidece that is strong enough, then the former evidence is discoverable. Your phone records may indicate who your paramour is, so it is reasonably calculated to lead to the discovery of admissible evidence, therefore you can be forced to proceduce the phone records.

>Shouldn't there be some solid grounds for her accusation?

She filed for a divorce. This in itself is pretty strong grounds. Evidently, she believes you committed adultery. And, you apparently are worried about her finding out that you did, because you don't want to reveal your phone records.

If you lived in California, the court would say, "I don't care if your husband was !@#$%^ a monkey -- it's not relevant to any issue before the court, so you can't have the phone records for the purpose of proving adultery." But, you live in Virginia, and there, the court uses adultery as an element in determining spousal support/alimony. So, it's relevant, and if the phone records will provide the identification of the adulteror's partner, then the records are reasonably calculated, because they will lead to the discovery of admissible evidence, for the purpose of proving adultery, so as to obtain spousal support.

Sorry.

[setmefree]

Thanks Socrateaser:

You have stated that "...then the records are reasonably calculated, because they will lead to the discovery of admissible evidence, for the purpose of proving adultery, so as to obtain spousal support."  

So, the whole idea of trying to prove adultry is to obtain spousal support?  What difference does it make in terms of amounts paid for spousal support, if any, since I will be offering spousal support based on my income and Virginia laws?

btw. she has not filed yet and I am planning to file in a couple of weeks based on one year separation.  Once I file, can she dispute my gounds for divorce?

Thank you.

[socrateaser]

>Thanks Socrateaser:
>
>You have stated that "...then the records are reasonably
>calculated, because they will lead to the discovery of
>admissible evidence, for the purpose of proving adultery, so
>as to obtain spousal support."  
>
>So, the whole idea of trying to prove adultry is to obtain
>spousal support?  

In many jurisdictions, a divorce may be obtained without any "fault," i.e., one spouse asks for a divorce, and the court must grant it. However, in jurisdictions, such as VA, which continue to demand/allow "fault" based pleadings, proof of fault can be used to provide the court with justification to increase and/or lengthen the amount and duration of spousal support (alimony) -- as punishment for the spouse who violates the marriage contract.

>What difference does it make in terms of
>amounts paid for spousal support, if any, since I will be
>offering spousal support based on my income and Virginia
>laws?

I don't know. I'm not expert on VA laws. You'll have to consult an attorny in the couny where the case will be decided.

>
>btw. she has not filed yet and I am planning to file in a
>couple of weeks based on one year separation.  Once I file,
>can she dispute my gounds for divorce?

Yes, she can respond to your pleading with an affirmative claim of adultery as grounds for the divorce.

[setmefree]

Dear Socrateaser,
We live in Virginia and going through divorce. I own 51% of our business.  My partner owns 49%.

During the discovery process her attorney is asking for corporate papers such as tax returns, employee payroll, buy sell agreement, etc.  

As the president of the corporation I have a fiduciary duty to protect the company.  

Isn't there some limitation that applies to the questions that are asked in the course of discovery and request for production of documents?

Should there be a relevance or shouldn't they show relevance?

Why is her attorney asking me to break the law by asking me to divulge corporate info or employee payroll information?  

I feel like I am either in contempt for not answering some of the discovery questions or breaking the law by piercing the corporate shield.

Thanks a lot.

[socrateaser]

>Isn't there some limitation that applies to the questions that
>are asked in the course of discovery and request for
>production of documents?

Discovery is permitted wherever the discovery is reasonably calculated to lead to the discovery of admissible evidence. This is a very low bar, because it permits a person to find evidence that would ordinarily be irrelevant/inadmissible at trial, if the evidence sought is reasonably likely to lead to the relevant/admissible evidence.

As the president of your company, you can state to the court that your fiduciary duty to the corporation requires that you refuse to produce corporate documents unless the corporation is subpoenaed or joined to the action. This is legitimate. However, be careful, because if your corporation was created during the time of your marriage, and/or assets of the corporation are the subject of dispute, then your spouse has a right to protect her interest in the company, which is likely quite substantial. Your spouse is your partner and you also have a fiduciary duty to HER (imagine that).

So, you can stand on ceremony and force your spouse's attorney to fire off a subpoena to your corp, but then you'll have to produce the docs, so why bother? The only legitimate objection that you can probably raise, is if your documents have some "trade secret" value, then you can request that the court hold the documents and only permit them to be examined in chambers, so as to keep the trade secrets from the public domain, which would injure your company, and your spouse's interests therein.

>
>Should there be a relevance or shouldn't they show relevance?

Nope. Relevance is only relevant at trial. Reasonably calculated to lead to relevant evidence is the standard, however, there are some requests that are not even reasonably calculated, and objectionable. Without knowing exactly what your spouse is asking to see, I can't comment on whether or not any particular discovery request is too broad and/or overreaching.

>Why is her attorney asking me to break the law by asking me to
>divulge corporate info or employee payroll information?

Who says it's breaking the law? If you know that a third party's interests are being compromised, such as an employee, you can refuse to produce that information, except on court order that reasonably protects the rights of the third party. But, remember, your spouse likely has an interest in your corporation, i.e., she is probably entitled to a share of the stock, and that gives her the right to reach most of the records related to the company's financial condition. So, you can, for example, black out the names of your employees on the payroll information, after obtaining an agreement with opposing counsel, or you can move that the court appropriately limit the discovery to protect third party interests, but eventually, you will have to produce most of what the attorney is seeking, or sit in jail until you do.

>I feel like I am either in contempt for not answering some of
>the discovery questions or breaking the law by piercing the
>corporate shield.

It's called the "corporate veil." And you are not breaking any law, however, you could be in breach of your fiduciary duty to the corporation, unless the corporation is directly subpoenaed to produce the information.

If you start trying to stall, and your reasons are not credible, the judge will pin your ears back. I don't know what the substantive issues surrounding the requested evidence are, so I can't comment further without express details.