Scandal: The Potential Effects of the Ashley Madison Hack on Divorce Practice

By now we’ve all heard about the recent hacking of the data (personal and financial information) of the users of the Ashley Madison website.  Some outlets have opined that this is “great” for divorce lawyers, but I think the hack’s effects will be more nuanced depending upon the individual circumstances of the marriage and/or the litigants.

First, a clarification: although adultery is a grounds (legal basis) for divorce in New York, it is rarely (if ever) used these days to actually get a divorce.  That’s because the plaintiff seeking a divorce on the grounds of adultery must prove with witness testimony other than the plaintiff him or herself (such as winding up on an episode of the show "Cheaters"), the defendant’s infidelity.  That’s a very high bar to jump, and it’s rather unnecessary when New York now provides a quasi-no-fault option of “irretrievable breakdown in the relationship” (what most people mistakenly refer to as “irreconcilable differences”).  Therefore, even if the Ashley Madison hackers were to expose data that show specific persons were subscribers to this “adultery” website, that information alone would likely be insufficient to establish the grounds of adultery.

Setting aside the ID theft issues (stolen credit card numbers, etc.) I think the matrimonial effects of this hack (and presuming the eventual leak of the private information accessed), can be generalized into a few different categories or levels of problems for the people whose information was accessed.

For those still “happily” married: Unless your spouse is a luddite or is willfully ignorant of your dalliances, presume that you will soon be found out.  In some cases this might lead to intensive counseling and couples’ therapy to save the marriage.  But more often than not, it will result in a (potentially acrimonious and expensive) divorce case.  A person finding him or herself in this situation would be well advised to preemptively seek the counsel of a divorce lawyer in their area, where they can at least obtain more particularized information regarding the divorce process, prior to a divorce case being filed against them.  Even the best attorneys cannot prevent a divorce case from being filed by a “cheated” or “wronged” spouse, but we can suggest some potentially money-saving processes for managing the divorce, such as pre-litigation mediation.

For those in the middle of a divorce: Unless your spouse somehow is suing for divorce on the grounds of adultery, infidelity is not a significant legal issue.  However, proof of infidelity can be an important bargaining chip.  For example, if you or your spouse is demanding certain distribution of property because you or they were such a “devoted” spouse for so many years, but it turns out that you (or your spouse) has been engaging in serial infidelity through aid of this website for the past decade, it can have significant adverse effects on such an argument during settlement negotiations.  Therefore, if you know that your information (name, credit card number, etc.) is on that website and potentially exposed through this hack, you should inform your divorce attorney immediately so that he or she will have sufficient lead time to assess and mitigate the damage to your case.

Regardless of the “cause” of a divorce – and regardless of who stands in the role of plaintiff or defendant – a divorce is a challenge both emotionally and financially.  But as damaging as the end of a relationship might be, it is also an opportunity to find a new start; a new beginning on one’s own, or with a new partner perhaps better suited to your personality.  While this hack of Ashley Madison was a troubling criminal act, it might ultimately provide some users of that website with the impetus necessary to take the leap and make the change they subconsciously wanted all along.

Child Support Arrears in New York Are No Party (Up in Here)

An interesting story developed this past weekend which virtually covered all of New York State.  No, I’m not referring to the fascinating conclusion to the manhunt for the Clinton Correctional escapees, but rather the arrest of the rapper DMX.  According to reports, the author of such hits as “Party Up (Up in Here)” and “What’s My Name?” was arrested outside of an old-school rap concert last Friday at Radio City Music Hall in New York City.  His arrest by the New York County Sheriffs was based on his alleged failure to pay over $400,000 of back child support to his child(ren) residing in Erie County (i.e. Buffalo, NY).

I’m not familiar with any of the particulars of DMX’s child support case, but I have known men and women who fall behind on child support for relatively innocuous reasons: the loss of a job, the care of the children while the residential parent was sick or out of town for an extended period of time, or the residential parent telling them “it’s OK, I don’t need payment this month.”  Unfortunately, innocent though a person’s motives may be, the child support laws in New York are strictly construed by state administrators and the courts, and without a court order modifying or reducing child support, the person charged with paying the support under an existing court order will often get in trouble for even such “innocent” non-payment.

What are the possible punishments for failing to pay the full child support ordered by a Family Court or State Supreme Court?  According to §454 of the New York Family Court Act, if a court finds that a person “has failed to obey” a child support order, the court will enter a money judgment against the person for the unpaid support, and may:

1. Order garnishment of wages;
2. Order the person to post a bond (undertaking);
3. Order “sequestration” (seizure) of the person’s property if he or she leaves or threatens to leave the state;
4. Suspend the person’s drivers’ license;
5. Suspend the person’s professional (i.e. medicine, law) or business licenses;
6. Suspend the person’s recreational (i.e. hunting, fishing) licenses;
7. If the child is on public assistance, require the person to participate in “work activities” (such as unsubsidized employment, etc. under §336 of the Social Services Law).

In addition, if the court finds that the person has “willfully failed to obey” a child support order, the court will also order payment of the other parent’s attorney fees, and may:

1. Impose a six-month jail term on the person; or
2. Require the person to participate in a rehab program (including possible job training and/or education); or
3. Put the person on probation “under such conditions as the court may determine” for up to as long as the order of child support “applies to such person” (See Family Court Act §456).

Furthermore, even without a specific court judgment regarding child support arrears, the Division of Child Support Enforcement (a part of the state Office of Temporary and Disability Assistance), may refer the delinquent person’s name to the major credit bureaus, may intercept any of that person’s lottery winnings, may refer the person’s name to the U.S. State Department (to prevent him or her from obtaining a passport), may intercept that person’s state or federal tax refunds, and may even file a lien against the person’s real estate in New York.

Most interestingly, as of June 30, 2015, the DMV’s authority to “automatically” suspend a person’s driver’s license for failing to pay child support (after notification of failure to pay from the Child Support Enforcement Division or local Child Support Collection Unit) was repealed.  (See former Vehicle and Traffic Law §510(4-e) and former Family Court Act §454(5)).  It is unclear whether the repeal of these provisions was purposeful (as they were repealed automatically under the terms of the enacting legislation).  Nevertheless, even if the DMV and Child Support Enforcement administrators cannot independently suspend a person’s driver’s license after July 1^st of this year, a court may still order that sanction after a hearing.

As we can see, DMX (and any other person unlucky or unscrupulous enough to amass thousands of dollars of past-due child support) might face very serious sanctions by the New York courts, if not also difficulties imposed upon them by the NY Support Enforcement Division.

Lessons from the Robin Williams Estate

OK, so technically this is not New York-specific legal news, but I found it interesting nonetheless (and I trust you do too!).  Although the vast majority of people read stories about deceased celebrities’ estates – and the inevitably warring groups of heirs – with a voyeuristic interest and think “well, I don’t have three houses in California, so my kids/spouse will never have these problems!”, in fact, if we look below the glitzy surface of these cases, they can hold very instructive lessons for all people planning for their own families.

In the Robin Williams case, apparently a Trust was established in which his children and former wife received the bulk of the estate, while his current wife was given their marital house and “enough money to keep it up through her lifetime”.  It’s been reported that the heirs dispute the value of this house, how much money is actually necessary to “maintain it” during the widow’s lifetime, and whether the contents of the marital house were intended to be kept by the widow, or part of the estate going to the children.  So what can we glean from this particularly messy celebrity estate?

1. Be careful what you agree to with your spouse! I presume that California, like New York, provides substantial protection for spouses (like Mr. Williams' widow), enabling the surviving spouse to claim a priority, often majority, share of the late spouse's estate.  However, at least in New York, under certain conditions a spouse can waive their statutory rights in an estate when signing an agreement to that effect.
2. Specificity in your estate plan is important!  I always encourage people creating Wills or Trusts to be as specific as possible with regard to their intent, so that there is little room for a dispute amongst heirs after that person passes away.  For example, if Robin Williams meant for his widow to have the house and every piece of personal property left in it, I would hope that the Trust was drafted to say that.
3. Mediation is for more than just divorce cases.  According to reports, the California court has delayed issuing a ruling on the Williams’ estate since the parties appear to be resolving much of their issues with the assistance of a mediator.  Mediation can be especially helpful in situations where, while there might be a serious disagreement amongst parties, the parties to the dispute may want to (or need to) maintain a civil relationship in the future.  We see the benefits of mediation often in the realm of divorces where the divorcing spouses have children together, but this type of dispute resolution could also be effective to resolve issues between neighbors, business partners, or, like here, a widow and the children of a deceased person.
4. Estate planning for blended families takes extra care.  When you have children from a prior marriage, a new spouse, and/or children with your new spouse, it is important to consider the financial needs and non-financial emotions of all of them when drafting your estate plan.  This can be tricky, but when done correctly and with care, many of the problems we see in Robin Williams’ estate might be avoided.  While a person is normally under no obligation to reveal the details of their Will or other estate plan with anyone (including heirs), in some situations, having everyone “on the same page” might be useful.

As we see repeatedly, just because a person is rich and famous, doesn’t mean that their estate planning issues are any different from those faced by us non-celebrities.

Sure you have a Will, but do you have a Genetic Will?

Over the decades, substantial advances in medicine and biotechnology have taken place, which now make it possible for individuals to conceive biological children from stored sperm or eggs even after a parent has died.  Owing to its cost and uncertainty, this isn’t something that occurs with great frequency, but it is sometimes pursued when a couple wishes to have a child (or more children) but one of the parents is dying of a terminal illness.  After the parent’s death, a true biological child of that person might successfully be born, but is that baby a legal child of the deceased parent?

Although there have been extremely few cases dealing with this question (apparently only one in New York: Matter of Martin B., 17 Misc.3d 198, 841 N.Y.S.2d 207 (Sur. Ct. New York Co. 2007)), the New York State Legislature felt it was a compelling problem that needed to be solved.  In which case, in 2014, the State passed and enacted several revisions to our Estates, Powers, and Trusts Law to provide clarification of who qualifies as a “child” of a pre-deceased parent.  Most important of which is the new §4-1.3, which provides that “a genetic child is the child of his or her genetic parent or parents and … is an [heir of the genetic parent] … if it is established that:” the genetic parent made a written directive about his or her stored genetic material within 7 years of his or her death, which “expressly consented to the use of his or her genetic material to posthumously conceive his or her genetic child, and authorized a person to make decisions about the use of the genetic parent's genetic material after the death of the genetic parent…”

This is what I would call a “Genetic Will”.  It is a separate written directive from one’s Will, and necessitates fewer formalities than an actual Will, but it is similarly one’s posthumous directive on how certain items (his or her genetic material) may be used after death, and by whom.  In fact, a person’s Will (even subsequent to the making of a “Genetic Will”) cannot alter or revoke a provision in the “Genetic Will”.  The legislation includes a sample form for people to use, but if a couple (married or otherwise) is contemplating needing this kind of directive, they should seek the advice of an estate planning attorney.

That’s because, for a posthumously-conceived child to be considered the legal child and heir of a deceased person, the following minimum (and somewhat complicated) steps need to be taken:

(1)  The deceased parent signed and dated a “Genetic Will”:

a.     Which sets out his or her consent for the conception of a child from his or her genetic material after death;

b.     Which specifies the name and address of a “custodian” of the genetic material;

c.     In the presence of at least 2 independent adult witnesses, who also sign the document;

d.     Within 7 years before his or her death.

(2)  After the parent’s death, the “Genetic Custodian” notifies the deceased person’s executor within 7 months of the opening of an estate that there is genetic material available for the conception of a posthumous child of the deceased person.

(3)  The “Genetic Custodian” records the “Genetic Will” in the Surrogate’s Court within 7 months of the parent’s death.

(4)  A child is conceived no more than 2 years after the parent’s death;

(5)  The child is born no more than 33 months after the parent’s death.

As you can see, although this new process provides some latitude for the inheritance of a posthumously-conceived child, it is far from a perfect system.  First, for estate executors faced with a “Genetic Will”, it can cause further frustration and delay in calculating each person’s share in an estate.  If there are 3 living children, but one or two (or three or more!) children could be conceived within 24 months after the parent’s death, the estate cannot be finalized and settled before the executor knows for sure what each child’s share will be.  Furthermore, if a posthumously-conceived child is born more than 33 months after death, he or she would still not be an heir to the deceased parent even under this new legislation.  The cutoff date of 33 months seems just as arbitrary as the cutoff date of death, or 9 months after the date of death.  Under our existing estates laws, any child conceived before a parent’s death (and born thereafter), would be considered an heir of that parent; but now there is a distinction made between those children conceived and born within 2 – 2 ¾ years after a parent’s death, and those children conceived and born within 2 years and 10 months of their parent’s death.

The challenges apparent in this new statute are still largely hypothetical (since so few of these situations arise), but as medical technology advances, and costs and risks of this technology decrease, we might someday be faced with a number of posthumous, genetic heirs, along with their less-advantaged younger genetic siblings.

A Surreptitious Stingray is FOILed

A fascinating bit of legal news has come out of my old stomping grounds in Buffalo, New York. In the context of a lawsuit concerning a Freedom of Information Law (FOIL) request to the Erie County Sheriff’s Office, it was revealed that (1) local police forces like the Erie County Sheriffs have been using arguably military-grade surveillance technology to track suspects; and (2) the FBI was so scared of the public finding out the details of this technology, that it directed police forces using it, to drop criminal cases rather than reveal any information concerning the cell site simulator.

The “cell site simulator” is commonly called a “Stingray” device and is produced by the Harris Corporation. In essence, it is a movable device which mimics a cell phone tower, thereby tricking nearby cell phones into transmitting location data and other data to the device, rather than a real cell phone tower. Even more troubling, as Judge NeMoyer of the NYS Supreme Court in Erie County noted in his trial court order: “[e]vidently, cell site simulators also can be used to ascertain telephone calling information, such as the time of, the location from which, and the number of the call, and the device apparently allows for storage of that kind of information also for future review and analysis.” In re New York Civil Liberties Union v. Erie County Sheriff's Office, 2015 WL 1278798, at *2 (N.Y. Sup. 2015).

While the Fourth Amendment and various federal and state statutes do allow for the targeted collection of data such as call records, phone location, and even recordings of texts and conversations (i.e. wiretaps) from the phones of persons suspected of criminal activity, the Stingray device is apparently capable of collecting data from all cell phones in the area in which it is deployed. That is, it spoofs and surveils innocent phone users in the area as well as the suspected criminal’s phone.

So what is a concerned privacy advocate to do? According to the Court, “the cell phone must be ‘on,’ with some battery life remaining, in order to be located and tracked by the device, but a call need not be in progress.” Therefore, if you turn your phone off when not in use, or the battery dies (a not uncommon occurrence with an iPhone), it might be protected from this type of roving law enforcement spying.

Beyond the obvious civil liberties concerns inherent in this kind of cell phone tracking and data collection by local police forces, Judge NeMoyer also unearthed a very practical law enforcement problem with use of this technology. According to a nondisclosure agreement that the Court reviewed, the FBI required the Erie County Sheriff’s Office “to conceal from the public the existence, technological capabilities, or uses of the device. Indeed, the Sheriff's Office is instructed, upon the request of the FBI, to seek dismissal of a criminal prosecution (insofar as the Sheriff's Office may retain influence over it) in lieu of making any possibly compromising public or even case-related revelations of any information concerning the cell site simulator or its use. If that is not an instruction that affects the public, nothing is.” In re New York Civil Liberties Union v. Erie County Sheriff's Office, 2015 WL 1278798, at *13 (N.Y. Sup. 2015).

So, ironically enough, local police may use this technology to track, trace, and apprehend criminals, but if the circumstances of their identification is possibly revealed by the ensuing prosecution, the police are required to drop the case against that person. In which case, the current use of these Stingray devices may be unique in being simultaneously violative of civilians’ Fourth Amendment rights against unlawful search and seizure, and ineffective at obtaining useful evidence in a criminal prosecution.

An E-mail PSA (or Nine Nifty Tips to Avoid Ruin)

The following is a public service announcement aimed toward my fellow attorneys (especially small firms and solo practitioners), but the advice described below is worthwhile for anyone to bear in mind when receiving unsolicited e-mails.

Every once in a while, I am chagrined to read about some poor (i.e. ignorant) attorney who lost a fortune (sometimes of his own and sometimes of his client’s money) and who faces significant possible penalties, because he or she succumbed to the latest e-mail “phishing” scam.  As attorneys, I think we’re bred to be skeptical people, but often greed (or really need) for new clients can cloud our better judgment.  On top of this fact, it is increasingly difficult to automatically weed out “spam” e-mails from our inbox because phishing hackers are getting better at circumventing the normal spam filters, and we often don’t want to set our filters too conservatively, for fear of missing a good potential client with an otherwise zany e-mail address.

But after receiving more than a few of these “phishing” e-mails in the past 8 years, I’ve come recognize patterns in the ones that should be deleted right away.  Here are some tell-tale signs that an e-mail from a potential “client” is, more likely than not, just a scam:

1. The e-mail address is wacky, like [unrecognizable word]@[domain you’ve never heard of].com.[foreign country code].  Especially if you have a relatively focused geographic practice, it’s unlikely that you will attract very many clients from overseas.
2. The sender includes a “link” to another (equally odd-looking) e-mail address in the body of the e-mail, which differs from the sender’s e-mail address appearing in the "From" header.  NEVER CLICK ON SUCH A LINK.  More likely than not, it’s a hidden virus or other problematic part of the scheme.
3. The e-mail is generically addressed to “Dear Counsel” or “Dear Attorney”.  If you have a small or solo practice (and your e-mail address is some variation of your actual name), it’s unlikely a potential client would be (a) so lazy as to neglect to use your name in greeting; or (b) so uninterested in his or her case as to use an e-mail “blast” to hundreds of different attorneys.
4. There are one or more other apparent attorneys in the "CC" or "To" headers of the e-mail.  Even if this might be a legitimate potential client, do you really want someone who is just “blasting” a generic request to everyone on some attorney e-mail list?
5. The language of the e-mail uses horrible grammar and is completely devoid of facts, other than the generic request “… Do you handle X cases?”.
6. Conversely, if the grammatically-poor e-mail contains relatively succinct facts that seem too good to be true … it is.  For example, if a “potential client” e-mails you from overseas stating that he or she received a settlement in a divorce proceeding, but needs a U.S. attorney to cash the $250,000 check and return the proceeds to the sender (of course, keeping 10% for your fee), this is nothing more than a clever variation of the old “Nigerian Prince” scam.
7. The request/legal matter is something that you’ve never handled and/or never advertised as part of your firm’s services.  I believe that I am a good estates and family law attorney, and that my website has all the right SEO for my areas of practice, but I am not so blindly conceited to believe that, out of the blue, a Dutch shipping company decides that they want to hire me to craft the documents for a major merger with another international shipping company.  That would no doubt be fun, but I would be very worried about the judgment of the Board of Directors of such a company.
8. The nationality of the sender’s name does not match the apparent derivation of the e-mail address.  For example, a distinctly Japanese name at the end of an e-mail from a sender with an “.au” (Australia) country code in their e-mail address.
9. The sender does not bother to provide any contact information other than the original e-mail address (or the afore-mentioned dangerous “e-mail” link embedded in the text).  Most legitimate people – even overseas – will provide you with multiple avenues through which to contact them if they are truly interested in assistance.  One caveat on this point: even if there is a signature block on the e-mail that contains an official-sounding business name and mailing address, check to make sure that the purported e-mail matches said business domain.  It is possible (because I’ve seen it happen) that a clever phisher will spoof the name/mailing address of a real business, but direct victims to his or her fake e-mail address.

A scam or phishing e-mail may not contain all of these elements, but if any of these red flags are present, you should be very cautious before responding (if you don’t delete the e-mail outright).  A couple of minutes of due diligence on your part can save you not only thousands of dollars of potential loss, but your reputation, and possibly your very livelihood, as well.

Complication With Optimistic Outcome

It was recently reported that Facebook will allow users to “to designate a friend or family member to be your Facebook estate executor and manage your account when you're dead.”  This “legacy contact” will be able to manage the decedent’s Facebook page, download photographs, make postings, and respond to “friend” requests.  While this is welcome news to many, it got me thinking about whether such service-specific estate representatives are necessary, and, on the other hand, whether limitations imposed on the service-specific “executor” are necessarily enforceable.

With the growth of technology, more and more individuals have an online presence.  Most often, this includes the creation of substantial amounts of property in the digital world, such as photographs, essays (blogs), videos, audio recordings, and communications (e-mail, Twitter messages, etc.).  While not delving into issues of copyright law, internet security or technological feasibility, I would like to share my thoughts on what New York’s current estate administration rules may have to say about these issues.

First and foremost, a decedent’s "Estate" is deemed to be “[t]he interest which a person has in property” under Estates, Powers, and Trusts Law (EPTL) §1-2.6(a); and “property” is defined as “anything that may be the subject of ownership, and is real [i.e. real estate] or personal property” under EPTL §1-2.15 and Surrogates Court Procedure Act (SCPA) §103(44).  I am not aware of any New York cases interpreting these definitions with regard to access to (or distribution of) “digital” property, but I think these definitions are surely broad enough to encompass it.

Once a person is designated the executor of an estate (by being granted “Letters Testamentary”), one of his or her principle duties and rights is to, “…acquire the remaining undivided interest in the property of an estate or trust in which the fiduciary, in his fiduciary capacity, holds an undivided interest.” See EPTL §11-1.1(b)(2).  Additionally, under EPTL §11-1.1(c), a court “may authorize the fiduciary to exercise any other power which in the judgment of the court is necessary for the proper administration of the estate or trust.”  In sum, this means that it is the responsibility and right of the executor of an estate, to take possession of all property of the estate, so as to pay necessary debts and taxes, and transfer the remaining property to the proper recipients (the heirs or beneficiaries).  If a person states in his or her Will that “all my property goes to my wife”, arguably, even digital property should be so distributed.

But what if Facebook, Google, Twitter or some other e-mail service or website refuses to transfer a decedent’s accounts to the custody and control of a properly-appointed executor?  I think our law is currently broad enough to address that as well.  Under SCPA §2103, an executor “may present to the court … a petition showing ... that any property as defined in §103 or the proceeds or value thereof which should be paid or delivered to him is (a) in the possession or control of a person who withholds it from him, … or (b) within the knowledge or information of a person who refuses to impart knowledge or information he may have concerning it or to disclose any other fact which will aid the petitioner in making discovery of the property …”  If the court is satisfied that there are reasonable grounds to order an examination of the “withholding” party, “it must make an order accordingly.”  Additionally, “the court may issue a citation to the person alleged to be in possession or control of the property to [explain] why he should not deliver such property or its proceeds or value.”  This type of §2103 motion has been successfully made of individuals for the return of “a car, musical equipment, computers, software, a copy machine, furniture, sporting equipment and memorabilia, family photographs and a cell phone” (In re Estate of Fenlon, 95 A.D.3d 1406, 1407, 942 N.Y.S.2d 908, 909 (2012)).

Of course, qualifying as the executor or administrator of an estate, demanding access to the decedent’s online accounts, and then compelling the divulging of those digital properties through a Surrogate’s Court §2103 proceeding can be both time-consuming and expensive.  Certainly, it would be better to appoint such a “legacy contact” with Facebook (and other online services one uses).  But if doing so, it is imperative to make sure that the "legacy contact" is not a different person from that which you appointed as an executor in your Will.  Otherwise, your executor could have the same problems accessing the accounts holding your digital properties as if there were no “legacy contact” named at all.