Melissa F. Brown Blog | SC Divorce Blog

Archive for the ‘Blog’ Category

New Business Provides Legal Fees, Helps Equalize the Playing Field & Payment Comes Once Case is Resolved.

Yesterday, Saturday, December 4, 2010, The New York Times published an article about Balance Point, an investment firm in Beverly Hills that helps fund legal fees and costs in divorce cases. The cases the company invests in must have assets between $2M and $15M. For those parties with assets in this range but no access to the marital estate or other means to pay their litigation costs, this company provides the funds and receives payment once the case is resolved based upon a percentage of the party’s ultimate receipt of assets.

In South Carolina and most other states, it is unethical for divorce attorneys to request payment from their clients in the form of a percentage of the ultimate receipt of the marital estate. This form of payment is quite common in personal injury cases, but it is repugnant in family court cases except those which involve only the issue of collecting an alimony or child support arrearage. However, a company whose investment is an arms length transaction and the company has no influence upon the the party’s ultimate settlement, it is permissible and in this author’s opinion, not at all repugnant.

Stacey Napp, the owner of Balance Point, founded the company following her own difficult divorce experience. Her company’s business model is novel because it only invests in divorce cases. I would not be surprised to see it take off. Equalizing the playing field so both parties have equal access to experts, experienced attorneys and other litigation costs removes the stress of worrying about how to pay for these necessary players or settling for less than one deserves simply because the party feels they cannot afford to fight for what is rightfully theirs.

According to The New York Times, Madeline Marzano-Lesnevich, an officer in the American Academy of Matrimonial Lawyers, welcomes the concept of businesses providing divorce funding to parties who might not otherwise have access to funds until the case was over. I welcome the concept as well and hope Ms. Napp’s idea takes off so those in needs of funds have access to them, including those whose assets are much less than the cases in which Ms. Napp invests her monies. Read more here: http://tinyurl.com/253bx4q

Posted in Blog, Uncategorized |

2 Comments »

New App for SC Child Support Guidelines Calculations

Sean Keefer, a SC family law attorney, mediator, musician and now “tech guru” just developed the application for I-Phones and I-Pads that calculates child support according to the SC Child Support Guidelines. The program makes it so easy to do a full calculation from your I-Phone at any time. If you want to download the program, search for the term “scchild”. While Sean has a free option, download the professional program for $9.99 because it is definitely worth the cost and will calculate cs for families with up to 6 children. (The free program limits the calculation to parties with only one child.)

Posted in Blog |

No Comments »

Spyware and Your Safety

Spyware is software that monitors a computer user’s browsing habits. Some Spyware is also capable of collecting personal information, and recording keystrokes. Some spyware contains other features such as taking snapshots of the computer screen; restarting, shutting down, and logging off the computer; controlling the desktop and mouse; and even making the computer talk. Spyware works by sending the information it gathers to the installer’s computer via email in the form of detailed “activity sheets.” The software is often inexpensive and easy to install but very difficult to detect without the use of special anti-spyware detection software.

Some spyware is also “acquired” when one downloads innocent looking software, music, or online videos, or by opening an email, IM, or text message. In a 2004 study conducted by America Online and the National Cyber Security Alliance, seventy-seven percent (77%) of those surveyed did not think they had spyware on their computers, but eighty percent (80%) of the computers tested were infected with some sort of spyware program.

Spyware is used legitimately by parents on their children’s computers or by employers on their employees’ work computers when the employee knows he/she is being monitored. However, when this information is obtained without the user’s knowledge, 18 U.S.C. § 2701, the “Unlawful Access to Stored Communications” Act is violated. The Act states one may not “intentionally access without authorization a facility through which an electronic communication service is provided . . . and thereby obtains, alters, or prevents authorized access to a wire or electronic communication while it is in electronic storage in such system . . . .”

There are simple ways to protect yourself or your client from spyware. Advise clients to only install software from web pages they trust and tell clients to carefully read the fine print in licensing agreements, looking for any reference to agreeing to a company’s collection of a person’s computer’s information. Also, advise clients to be especially wary of popular free music and video file-sharing programs. Web links found in email spam or other unsolicited messages frequently contain spyware. Installing quality anti-spyware programs that find and delete spyware as well as running the anti-spyware programs once a week will better protect one’s computer.

KeyKatcher: Spyware Software

KeyKatcher is a spyware program that some divorce litigants have used to illegally monitor and spy on their spouses. KeyKatcher software is easier to use when the couple lives together and the “spy” has constant physical access to the computer. A KeyKatcher is a small device resembling a flash-drive that is connected to a computer’s keyboard or tower and records up to 262,000 keystrokes, or over 160 pages. After the keystrokes are recorded, the “spy” can remove the device and download the information onto another computer. To prevent the use of KeyKatcher on a computer, clients should check the keyboard port on the back of their computer tower. If they find a foreign device, they should physically remove the device and have a qualified forensic computer expert analyze it.

Conclusion of the Series of Safety and Security in a Digital Age

Judges, lawyers, clients and the “average Joe” need to educate themselves about the various types of technology that can infringe upon their privacy and potentially cause them harm. The reason for concern is that our laws are currently unable to keep up with the development of new digital gadgets and software. Thus, it is imperative for all to understand the potential abuses and to warn clients, friends and family from using any illegal means to obtain evidence about another individual without that individual’s knowledge and to apprise others how to protect themselves from becoming a victim of such abuse.

(This is the final posting in a series about safety in this digital age. Click here to read the previous article in the series.)

Spyware is software that monitors a computer user’s browsing habits. Some Spyware is also capable of collecting personal information, and recording keystrokes. Some spyware contains other features such as taking snapshots of the computer screen; restarting, shutting down, and logging off the computer; controlling the desktop and mouse; and even making the computer talk. Spyware works by sending the information it gathers to the installer’s computer via email in the form of detailed “activity sheets.” The software is often inexpensive and easy to install but very difficult to detect without the use of special anti-spyware detection software. Read the rest of this entry »

Posted in Blog |

No Comments »

Cell Phone Surveillance and GPS: How to Protect Your Privacy and Safety

Cell phone surveillance does have many valid purposes. Employers often need to track their employees during work hours, and it is legal to use such systems as long as the employees know it is on the vehicle. Some parents use this technology to monitor their young children, particularly those who may stray or are not old enough to care for themselves. In addition, such technology is commonly used by parents on the vehicles driven by their teenagers. For a small fee, one can easily contact their cell phone service provider and transform their cellular phone into a surveillance and GPS tracking device. Although the federal wiretap law prohibits many forms of electronic communication monitoring, 18 U.S.C. § 2510(12)(C) specifically excludes signals by mobile tracking devices like GPS.

Predictably, GPS technology is sometimes abused by individuals wanting to stalk their spouse or significant other. Obviously, such misuse is illegal, but many abusers are undeterred. New technology also exists to illegally register a phone via the internet for GPS surveillance, with the thief paying for this surveillance on his own credit card. Thus, advise clients not to loan their cell phone to anyone whom they do not trust even for a few minutes because one may never know if he is being tracked via his cell phone since the charges for this service do not show up on the cell phone owner’s statements. Clients should also know that soon-to-be-ex-spouses sometimes put GPS software on the children’s cell phones for improper purposes, such as following their spouse when the child is with the other parent.

GPS devices are also easily placed in PDAs, pocket PCs, running watches, and vehicle navigation systems (OnStar). GPS devices are frequently hidden in automobiles. The most popular locations are inside the plastic bumper, in the gap between the windshield and the hood, inside stereo speakers, in the front dash, under rear dash fabric, or in the rear dash/third brake light. It is easy to hide these devices, and many are also capable of tracking the cars in real time as well as having the ability to record the car’s speed. The features are particularly useful to confirm a spouse is cheating or more importantly, if a spouse is driving dangerously at high speeds with the child(ren) in the car.

Sherri Peak, of Seattle, Washington, was stalked by her ex-husband through a cell phone equipped with a GPS that he had attached to the battery of her car. Sherri filed for divorce when her husband become overly possessive and questioned her whereabouts throughout the day. After they separated, her husband began showing up everywhere she went. After six months of this behavior, Sherri asked police detectives to search her car to find out how her husband knew her every move. The detectives found a tracking device made from an ordinary cell phone under her dashboard. The charger was wired into her car’s electrical system so that every time Sherri started her car, the phone would charge. He also set the ringer to silent so the phone automatically answered whenever he called, but without her knowledge. Thus, he could listen to everything going on in her car. The cell phone was also equipped with a GPS system with a companion computer program so Sherri’s ex-husband tracked her every move. (See the link in Footnote 15 for a video account of Sherri’s ordeal.)

Sherri’s ex-husband was ultimately arrested. He plead guilty to felony stalking and served eight months in jail. When the police arrested him, they also found keys to Sherri’s house, night vision goggles, computer spyware, print-outs of emails Sherri sent to other people, and bank account numbers and passwords. This story is not highly unusual; according to one source, three out of every four stalking victims are terrorized by threats of violence or death at the same time they are being monitored and followed.

To avoid having an estranged spouse, stalker or ex-spouse from using GPS technology to track a client, advise the client to contact their cell phone service provider and ask if location services have been added to his or her service plan. In addition, advise clients to set up their own cellular phone account and make it password protected so no one else can access account records or change account settings. Clients should also beware cell phone “gifts.” The reason for this warning is that the cell phone may have GPS and other monitoring technology downloaded on it, and the recipient may not want the giver to have the ability to track down his or her whereabouts. Finally, tell clients to set Bluetooth to “hidden” and GPS to “911 only,” especially when in public areas. As to GPS devises attached to vehicles, find a knowledgeable detective or car repairman familiar with the hiding places to locate any hidden devices.

Next article in the series: Spyware and Your Safety #5

(This is the fourth posting in a series about safety in this digital age. Click here to read the previous article in the series.)

Cell phone surveillance does have many valid purposes. Employers often need to track their employees during work hours, and it is legal to use such systems as long as the employees know it is on the vehicle. Some parents use this technology to monitor their young children, particularly those who may stray or are not old enough to care for themselves. In addition, such technology is commonly used by parents on the vehicles driven by their teenagers. For a small fee, one can easily contact their cell phone service provider and transform their cellular phone into a surveillance and GPS tracking device. Although the federal wiretap law prohibits many forms of electronic communication monitoring, 18 U.S.C. § 2510(12)(C) specifically excludes signals by mobile tracking devices like GPS. Read the rest of this entry »

Posted in Blog |

No Comments »

Spousal Abuse and the Legal Implications of Using Spyware

Mental and emotional abuse from a controlling spouse is exacerbated by the use of spyware. Currently, few laws address one spouse’s intrusion upon another spouse’s right to privacy through abusive spy methods. Clearly, spyware that tracks a partner’s moves by observing and monitoring all computer activity such as websites visited, emails sent and received, instant messages sent and received, as well as all passwords and PINs entered by the spouse without their knowledge is illegal in most states.

The use of such illegally obtained information as evidence in court proceedings is also prohibited by law. The Federal Wiretap Act prohibits use of communications obtained through wiretapping in violation of the Act admitted into evidence at trials or hearings. A law firm in Chattanooga, Tennessee, was recently sued sued for two million dollars ($2,000,000) for allegedly using illegally obtained email evidence in a divorce action. Allegedly the estranged wife used email spyware to intercept communications from her husband’s computer, and her attorney “used or tried to use” the communication in the divorce action.

Attorneys, for both ethical and legal reasons, must clearly advise clients not to use any illegal spyware devices even if they suspect their spouse is cheating. Further, the Model Rules of Professional Conduct address the serious ethical violations that could arise if an attorney encourages or condones a client’s use of such spyware. Therefore, it is imperative for clients to understand the differences between legal and illegal surveillance so both the attorney and their clients avoid costly mistakes.

However, the use of spyware in intimate relationships to control a partner is not a form of domestic abuse currently recognized by law. Few criminal statutes effectively address the issue of marital spying. Some civil causes of action exist that might encompass spyware, but these laws are not well developed or targeted to put an end to this form of abuse. Even the Federal Wiretap Act, 18 U.S.C. § 2510, falls short of completely protecting a spouse who is unknowingly tracked, monitored and controlled by the other spouse. In fact, hardly any legal remedy exists until the controlling spouse becomes physically abusive.

The criminal definitions of domestic assault, stalking, invasion of privacy, computer tampering, and violating state wiretap acts each fall short of including marital spying as a criminal offense. The likely reason is that these statutes and acts were passed well before the rise in use of computers and the Internet. Possible causes of action against a spouse who uses spyware against another spouse are negligent infliction of emotional distress, intentional infliction of emotional distress, invasion of privacy, trespass to property, and possibly violation of a state’s wiretap act. Again, proving each of the elements required for each cause of action is difficult. Therefore, it is imperative that state legislatures and the federal government update civil and criminal laws to include spyware and other digital and technological advances to prevent harassment by one person against another.

Next article in the series: Cell Phone Surveillance and GPS: How to Protect Your Privacy and Safety

(This is the third posting in a series about safety in this digital age. Click here to read the previous article in the series.)

Mental and emotional abuse from a controlling spouse is exacerbated by the use of spyware. Currently, few laws address one spouse’s intrusion upon another spouse’s right to privacy through abusive spy methods. Clearly, spyware that tracks a partner’s moves by observing and monitoring all computer activity such as websites visited, emails sent and received, instant messages sent and received, as well as all passwords and PINs entered by the spouse without their knowledge is illegal in most states.

Read the rest of this entry »

Posted in Blog |

2 Comments »