Let legal system rule in divorce cases

By Andrew Zashin*

This article originally appeared as a column for the Cleveland Jewish News.

Thanks to the media’s obsession with celebrity extramarital affairs, we’ve learned to take sides. We vilify the cheater and the third party, but at the heart of each story is our sympathy for the faithful spouse, the scorned.

We identify with this person the same way we identify with our favorite sports teams; we follow property divisions and custody battles with the same fervent energy we carry to Browns Stadium. But the rules of this game are often misunderstood. When the faithful spouse turns to the legal system to exact revenge, he or she will usually find that the infidelity itself matters little.

Like many states, Ohio is a “no fault” divorce state, meaning that infidelity matters far less to the divorce court than most clients believe. While in the past, divorces could only be granted if one proved a spouse’s wrongdoing, Ohio law now makes divorce more accessible. Under the current law, a party need only show that the couple has lived separate and apart for at least a year, or, even easier, both parties can simply agree that are they are incompatible (even if it’s the only thing they can agree on).

Many of my clients expect more spousal or child support, better property division, or a better custody arrangement as punishment to the unfaithful spouse. While the courts have leeway to consider whatever factors they deem relevant, the law makes no mention of adultery as a relevant consideration, no matter how relevant you find this new guy and his Harley or new gal and her plastic surgery. Unless marital money is used to support the paramour or a spouse is inserting his or her new beau into the children’s lives against their best interests, adultery will most likely have no effect on the settlement.

Know that if you are in the midst of a divorce, the law does not prohibit you from dating. However, consider the possible ramifications of your actions. If your joint bank account statement dips, you can expect that Facebook album of you and the new love on the beach in Oahu to become court evidence back in Ohio. If you’re the victim of infidelity, understand the limits of what the legal system can do for you. While your attorney will do everything in his or her power to get you a fair settlement, don’t expect your spouse to pay for infidelity in court.

But if cheering on the Elin Woodses and Maria Schwarzeneggers and Tareq Salahis of the world eases the blow, go right ahead.

*Andrew Zashin writes about law for the Cleveland Jewish News. He is a co-managing partner with Zashin & Rich, with offices in Cleveland and Columbus.

2023-11-10T13:38:18-05:00November 17th, 2011|Adultery / Infidelity, Divorce|

Social networks – an attorney’s new best friend

By Andrew Zashin*

This article originally appeared as a column for the Cleveland Jewish News.

A wall post here, a tagged photo there – in a session on Facebook, users are capable of sharing the intimate details of their lives with anyone who is paying attention. If you’re the one posting, expect your soon-to-be-ex’s attorney to be watching closely. A recent survey by the American Academy of Matrimonial Lawyers said that social media is cited in as many as 20% of today’s divorces. Now more than ever, online sharing might just be the reason your relationship status goes from “in a relationship” to “it’s complicated.”

Think before you click: We often forget that the information posted on Facebook is public. Your information can be accessed and used against you. It’s easy to change your privacy settings to ensure that only your friends see your newest status update, but that doesn’t mean that status won’t fall into the wrong hands. And it isn’t as easy to recognize which of your postings could be incriminating evidence. When it’s just you facing your computer, flaunting your new relationship might feel very good, particularly in the midst of ending a bad relationship But remember when Joseph bragged about his multicolored coat? Don’t make the same mistake. Watch the rants, too.

Posts that can come back to haunt you: A dated photo can prove that you were somewhere you claimed not to be. A comment about your new lover is practically a confession. The trip to Cabo can figure into an assets dispute. And the wild night out can have a judge wondering just how fit a parent you are. Your online postings can even become evidence of infidelity, which could put your character in question when determining matters of custody.

Networking no-no’s: Be cautious of what you post. Disparaging comments about your spouse reflect poorly on you. Watch your friends’ posts. Their references to your wild party could scream “unsuitable” in court. Be especially careful when posting pictures of your children, as your spouse and his or her attorney could twist the meaning of innocent photographs. And if your children are on Facebook, remember they can see your post as well. You want to be especially cognizant of their feelings. You may consider temporarily deleting your social network accounts as a precaution, even if you don’t think there’s anything incriminating.

Sound advice: When interviewing a lawyer, ask about his or her experience with social networking. A good divorce lawyer should know how to make the most of information available on social networking sites in order to advance your legal case. Always bear in mind that honesty is the best policy – in court, of course, and online. Never let online evidence contradict what you have testified to. For example, photos on Facebook of a shiny, new convertible make a financial hardship claim ring hollow. Likewise a LinkedIn profile can bolster your claim that you are looking for work.

Before signing out: Keep in mind that your spouse is just as likely to “overshare” as you are. Then Facebook evidence could work to your advantage. Now that’s worth liking.

*Andrew Zashin writes about law for the Cleveland Jewish News. He is a co-managing partner with Zashin & Rich, with offices in Cleveland and Columbus.

2023-11-10T13:38:18-05:00October 6th, 2011|Adultery / Infidelity, Divorce, Social Media|

Elizabeth Hurley and the Impact of Cheating on Divorce

At the beginning of this month Elizabeth Hurley filed for divorce from her husband of four years, Indian businessman and textile heir Arun Nayar. While she claimed the divorce was caused by Nayar’s “unreasonable behavior,” her own behavior made headlines several months prior when the tabloids broke the news of her infidelity with the also married Australian cricket player Shane Warne. As soon as Britain’s News of the World reported the couple had shared a hotel room and were photographed kissing in public, both Hurley and Warne rushed to the internet to do some damage control. They were quick to point out that they had been separated from their respective spouses for months. Their actions were intended to classify their relationship as something other than infidelity, and they highlight the general feeling in our society that infidelity is wrong and immoral.

The issue of adultery unfortunately arises frequently in divorce cases. Often one spouse has cheated on the other during the marriage and the infidelity may be the catalyst for the divorce. Or, perhaps the couple has already split and is working toward divorce when one spouse begins dating again. In either situation, the faithful spouse typically experiences a wide range of emotions, from hurt, to anger, to resentment, jealously, and the desire for revenge. The wronged party then turns to the legal system to exact that revenge, and is often surprised when they don’t find the retribution they hoped for.

Like many states, Ohio is a “no fault” divorce state, meaning that infidelity matters far less to the divorce court than most clients believe. In years past, it did hold greater import because a divorce could only be granted when one spouse could prove some wrongdoing on the part of the other. And Ohio law still lists a number of possible grounds for divorce that including some wrongdoing, including, among others, habitual drunkenness, extreme cruelty, gross neglect of duty, willful absence, imprisonment, and, yes, adultery. In practice these grounds are usually asserted in the initial papers that are filed, but they are very rarely actually addressed before the court. This is because Ohio law, similar to the majority of other states, now makes divorce more accessible by allowing couples to end their marriage without the need to prove any wrongdoing by either party. Under the current law a party need only show that the couple has lived separate and apart for at least a year, or, even easier, both parties can simply agree that are they are incompatible.

A mistake that many clients make is to expect more spousal support, or more child support, or a better property division, or a better custody and visitation arrangement as punishment to their unfaithful spouse. Unfortunately, though, while the courts do have some leeway to consider whatever factors are deemed to be relevant, the laws that govern how the courts are to decide issues of custody and visitation, child support, spousal support, and any property division make absolutely no mention of adultery as a relevant consideration. That is, absent some compelling reason, the infidelity of one spouse entitles the faithful spouse to no more than he or she would otherwise have received without the infidelity. This is indeed a bitter pill to swallow when one desperately wants revenge for their suffering.

At this point you may be shaking your head and thinking of a friend, family member, coworker, or acquaintance that had a different experience during their divorce. And this is not to say that one never pays for their infidelity in the context of a divorce. Indeed, if a spouse spends marital money treating a paramour to lavish vacations and expensive gifts he may find his property settlement cut in order to repay his spouse for the misused money. Similarly, a spouse who inserts her new beau into the lives of her children against their best interests might be unhappy with the court’s custody/visitation decision. However, generally speaking there is no legal mechanism by which a court will punish someone for infidelity alone.

Two main lessons should be taken from this.

First, if you are in the midst of a divorce, know that the law does not prohibit the dating of others. However, if you are considering dating before your divorce is final you should consider all possible ramifications of actions such as spending marital money to support someone who is neither your child nor your spouse. And if you have children, you should be very conscientious about their emotional well-being when determining what to tell them about your new relationship and how and when, if ever, they will be introduced.

Second, if you find yourself the victim of infidelity it is important to understand what your attorney and the legal system can and cannot do to help you. By seeking the needed emotional support from those more able to assist, such as family, friends, clergy, counselors, and the like, you may be better able to begin healing, while spending your time and money with your attorney and in the court system in the most constructive manner.

2023-11-10T13:38:18-05:00April 22nd, 2011|Adultery / Infidelity, Divorce|

Tiger Woods and Al Gore: What the Average Person Can Learn From Celebrity Divorces

1. Consider Pre-Divorce Planning: it may not feel “romantic” to discuss the possibility of divorce with your spouse. But if the two of you can appreciate the practicality of such a conversation now, it can save you money and heartache in the future should divorce become a reality.

2. Be Proactive: If you or your spouse is considering divorce, don’t put your head in the sand and hope it goes away. Use this time to find an attorney you are comfortable with so if the time to split comes you have a knowledgeable ally at the ready.

3. Choose your lawyer carefully: Even for people who are not celebrities or high net worth individuals, the choice of a divorce lawyer is critical. It is difficult enough having to deal with divorce and child custody issues. Compounding those problems are the difficulties of being a consumer of domestic relations law services. It is therefore imperative that the law firm you choose is one that is familiar with the law and getting things done. The lawyers at the law firm you choose may get involved in many intimate aspects of your life. Make sure that the lawyers at your side are ones with whom you feel you have good “chemistry.” You need to click with them. And finally, the law firm you choose to represent you should have the resources, human and otherwise, to support the uniqueness and complexities of your case. Otherwise, in a time of crisis you may feel stranded or outgunned.

4. Work Together to Preserve Your Estate: As hard as it may be (especially if an extramarital affair is involved), working with your spouse to create an amicable resolution saves time and money. If children are involved this is even more critical. For example: while it may feel good to “out” a spouse for an affair, in some cases this could jeopardize his or her job. If (s)he is the breadwinner of the family, this could compromise your ability to receive support for years to come. Of course if you suspect your spouse is hiding assets, this may not be possible. But if you are able to work openly and honestly with your spouse, the payoff will outweigh the initial emotional hurt tenfold.

If international custody issues could arise, it is even more critical that you are proactive when considering divorce. Perhaps the Woods discussed the children moving with their mother back to her home country upon a divorce. Perhaps not. But now, less than a year after his scandal broke, Tiger has a tarnished image, hundreds of millions less in his bank account, and may find himself living in a country without his kids. Learn a lesson by his example: if divorce is on your horizon, be proactive, find competent counsel, and set aside emotion while working with your spouse to preserve the marital estate.
Finally, people often think they need a “tough” lawyer or a “shark.” There is a legitimate time and place for being tough. Being tough all the time, however, often leads to useless and counterproductive fighting. And in the field of family law there are lots of fights not worth having. Instead, what most people really want is a results-oriented lawyer. Such a lawyer is tough when necessary, but also capable of resolving conflicts. In a word, a results-oriented lawyer is one who can modulate; one that can adapt to any given situation and resolves cases in ways that make sense for their clients. To familiarize yourself with the results-oriented family law attorneys at Zashin & Rich, please visit http://www.zrfamilylaw.com

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