How might family law attorneys use the Ashley Madison data?

If you’ve been following the coverage of the Ashley Madison data dump, you may have read the stories about the expected surge of traffic to a divorce attorney’s office. It is anticipated that prospective clients who find that their spouse’s e-mail or name is within the database may contact a divorce attorney. Of course we would hope that it is not this simple trigger that would lead a client to contact attorney… that there are additional facts/evidence/suspicion of marital problems.

However IF that is the case, the next question is, how might a family law attorney use the information found on the Ashley Madison data dump?

Ashley Madison data

How might the Ashley Madison data be used in a family law dispute?

1. Attorneys should verify that the information is indeed connected to the person of interest.

One big disclaimer to all of the reporting of the Ashley Madison breach and database posting is that the e-mails in the database may have been hijacked, in a way. The site does not validate e-mails when accounts are created. So, in theory, anyone can create an account with another person’s email.

The other information posted in the dump includes full names, addresses, telephone, partial credit card numbers and physical descriptions including height and weight. It also includes the profile write-ups. All of these could be reviewed by the client to see if (most likely) she sees a similarity to what her spouse would post, or where they live, or if he has a telephone number that matches, etc.

2. Attorneys will want to search for additional evidence of the affair by reviewing other dating sites. The Ashley Madison data dump includes names. Of course, if a user used his true name, this is a relevant find. However, users who created false names could also be informative.

Although Ashley Madison is (by now, most certainly) the most famous salacious website, there are other websites a person could use to arrange an affair. Adult FriendFinder, who had their own database hacked into in March, 2015, is direct: Sign-up now and start hooking up tonight, they post on their home page. Okcupid lets a member search by “Covert Affairs”, and Craigslist allows posters to set their posting category to a “Casual Encounter”.

A family law attorney might find that the husband has additional postings on these other sites under the same handle/user name or with the same written description.

If an attorney can find additional profiles on other sites, the validity of the user being the one who posted on the Ashley Madison site becomes stronger.

3. Allegations or proof of an extramarital affair could be used to argue for sole custody of a child.

Like many other states, Michigan is a ‘no fault’ divorce state. This means that residents can establish a divorce without having to establish that the other party did something wrong. So although an affair is one reason a party may ask for a divorce, this reason will not be considered by the courts for granting a divorce.

However, proof of an extramarital affair could be used in determining the custodial arrangements of the divorcing parties.  In Michigan, we have what are called the “Best Interest Factors”. These are used to help make determinations of custodial arrangements between divorcing parents and their children. Factor F is the moral fitness of the parties involved. A family law attorney could most certainly use evidence of an extra-marital affair to argue against the cheating spouse receiving joint custody.

4. Allegations or proof of an extramarital affair could be used to argue for an increased amount of alimony and the division of the marital estate.

Similar to the Best Interest Factors, courts have factors to consider when dividing marital property and awarding spousal support. When dividing the marital property, one factor is the cause for the divorce, including fault in the breakdown of the marriage. When awarding spousal support, two factors are past relations and conduct of the parties and a spouse’s fault in causing the divorce.

In conclusion, evidence of an e-mail being listed in a database that contained information from the past seven years is probably not enough to completely sway a judge in a family law matter. But if the family law attorney leverages this information and builds additional evidence against the opposing party, this could be something included when arguing the big-ticket items within divorce matters.

Are appellate court rulings helping most of the people in family law matters?

As Joshua Lenon, Go Clio’s lawyer-in-residence tweeted recently, 2/3 of California family law cases are filed by a self-represented litigant.

With that in mind, I wonder how many of the 1/3 who can afford representation at the trial level can also afford to file an appeal to their suits!

As a law student, I have learned that we only read appellate cases because they have written legal opinions.

As someone who has been a defendant in a multi-year family law dispute, I know the thousands of dollars it costs to being a defendant in trial. And that is just for trying a case at the lowest level without continual representation by a lawyer.

The majority of all civil litigation happens at the trial level, yet these rulings are minimally studied by law students. We focus on the reasoning made by the higher-level courts.

With this in mind, I’ve often wondered, how representative are the appellate level cases of the trial level suits? Is the issue being appealed a common one? Or is it a problem that only wealthy people face? (This is assuming that those 2/3rds of self-represented folks are not the one filing appeals, of course.)

As an academic, I’ve used the term “generalizability”. It’s a made-up term and certainly sounds impressive, right? A good definition is here, which is “the extension of research findings and conclusions from a study conducted on a sample population to the population at large”.

Simply stated- how relevant is your research to everyday people?

Now if we apply that concept to my questions from above… one could ask, “How generalizable are the corrections made by the appellate courts to the larger population who litigates family law cases at the trial level only and who most commonly litigates without the help of legal counsel?”

Let’s “plain language” that question…

How generalizable are the opinions of the appellate courts?

How generalizable are the opinions of the appellate courts?

Are appellate court rulings really helping most of the people who are suing over family law matters?

If an appellate court is a corrective court, then they are there to correct the mistakes made by the lower courts. My concern is not with this process (and I’m thankful for it!), but with the generalizability of the their correcting rulings and if they predominantly apply to issues that most people may face within the world of family law litigation.