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Mr. Kessler quoted by NPR about Spyware in Divorce

I Know Where You’ve Been: Digital Spying And Divorce In The Smartphone Age

It was the summer of 2016, and M was worried her ex-husband was stalking her. She would get out of town and stay with friends. But, as she noted in court documents, her ex seemed to know exactly where she was and whom she visited — down to the time of day and street.

M started to change the way she drove — slowing down, driving in circles — in case a private investigator was following her. She didn’t see one. Then she went online and learned about GPS trackers — small devices you can slip into a car to monitor where it goes 24/7. She looked for one and couldn’t find any.

Weeks later, when she took her car to a local auto shop for maintenance, she asked the mechanic to look. He found the GPS tracker near her front left tire.

Digital spy tools like that GPS tracker are changing divorce as we know it. Increasingly, couples are turning to the latest technology to spy on each other as their marriages fall apart, according to dozens of divorce lawyers, investigators and even a leading family court judge whom NPR interviewed. Tools are cheap and easy to use — from something as simple as the Find My iPhone feature to spyware that can be installed in a spouse’s computer, phone, or even a car, as M had discovered.

NPR interviewed M, her lawyers and the police sergeant she filed a report with; we also reviewed her court filings and those of her ex-husband. We won’t disclose any of their names or where she lives to protect her identity because she fears for her safety.

Back at the mechanic, M looked at the device — it was a small black box. The sales clerk there pushed the button to show that the batteries still had 25 percent to 50 percent energy remaining. Meaning, they had been in use for just a few weeks.

That was odd, because M had left her husband nearly a year earlier. But her ex-husband had found a way through technology to stay abreast of her movements. It may sound intrusive, but it was legal.

M’s husband acknowledged through a lawyer’s letter and in family court that he had the GPS tracker installed. The sergeant from the police station did a criminal investigation. But, he tells NPR, prosecutors would not prosecute because the car was jointly owned; if it belongs to both of them, the ex had a right to track it.

For M, this discovery was profoundly troubling. She described it to NPR in an interview at her lawyer’s office: “I am now fully aware that all of those times that I thought I was keeping myself safe, all of those times that I was leaving town, all of those times that I was staying in different places, staying at friends’ houses, I never was safe.”

After discovering the GPS tracker at the mechanic, she went directly to the police precinct to give a statement. NPR reviewed the video recording; M spelled out for the sergeant how it felt to discover she wasn’t going crazy when she suspected that she was being watched.

“I’m terrified. I am absolutely terrified,” she said at the precinct, holding back tears. “I might still be functioning. But that doesn’t mean I’m not terrified.”

Welcome to divorce in the 21st century — when what it means to be safe and how much privacy you’re entitled to are open questions. M’s case is not unique. NPR talked with dozens of marital experts. They say digital spying is changing divorce as we know it. The tools are abundant. Clients use it in an effort to stay in control after a separation or to gather evidence of extra-marital affairs or drug abuse. But the laws are murky, and law enforcement is lagging far behind.

A more invasive tool

Lawyers say that partners in breakups sometimes install spyware on computers or phones. These are apps that are available for a subscription fee, say $16.99 a month. Once installed, people can see every incoming and outgoing message from the target’s phone, Web searches, even keystrokes — the letters someone is typing, say, when they log into a bank account. And spyware takes just minutes to install.

The legality of tracking technology is messy. Parents are allowed to put spyware on a child’s phone or a home computer, for example. But, experts say, putting it on a spouse’s smartphone without consent is generally illegal.

Lawyers say they can’t prevent their clients from using digital spying. Some are willing to accept such evidence if legally obtained and will even present it in court to help their client’s case. Other lawyers don’t want to get near it.

“I have little power over a client’s curiosity,” says Susan Myers, a family law attorney in Houston. “More often than not, they’ve already done the [illegal] act by the time they show up to my office.” She says her office will not accept it as evidence because then she too would be subject to criminal liability for wiretapping and intercepting electronic communications.

Emily Miskel, a family court judge in Collin County, Texas, has a different perspective on what is really happening. “Lawyers are extremely conflicted and confused,” she says. “[They] are put in a position of having to choose between a rock and a hard place, because [their] duty is to zealously advocate for clients which means using every bit of evidence that can help their case.”

Not just evidence, but control

M doesn’t think her ex stopped at the GPS tracker. She suspects he used spyware on her phone, in an effort to stay in control. She left him and took their child after, she says, he choked her.

In family court — in her affidavits and oral testimony — M laid out her fear of both physical abuse and electronic surveillance. M claimed her ex seemed to know the contents of her text messages — which friends she talked to, even after she left the house.

M gave NPR this one example of an unsettling message her ex-husband sent: “I know all of the ways you’ve described me to your friend.” She says snippets of how she described him were then forwarded to her as a text message.

Her ex has denied all allegations. And the judge focused on the physical charges, like choking, rather than on the digital spying allegations.

With her suspicions raised after discovering the GPS tracker, M went to an Apple store for help locating spyware on her phone. She says the Genius Bar employees didn’t look for the spyware; instead they helped her by swapping the device for a brand new one. But that meant that the evidence, if any, went along with the phone. This is common in spyware cases, in which victims solve the immediate problem but can’t present proof for an investigation.

What the data show

In 2012, the last time the Justice Department attempted to quantify stalking, it estimated that 1.5 percent of all adults in the U.S. were victims. That figure more than doubled — to 3.3 percent — for people who were divorced or separated.

An even earlier DOJ survey of stalking victims in 2005 and 2006 found that electronic monitoring of some kind was used on one in 13 victims. This was before iPhones and the smartphone era.

Criminal prosecutions and civil lawsuits over digital stalking remain, however, few and far between. Experts say a huge barrier to criminal prosecution is that local police cannot or will not investigate. People who believe they are victims have to pay thousands of dollars out of pocket to get a private investigator who specializes in digital forensics to diagnose their smartphones or laptops. It’s far cheaper to just wipe out a hard drive or trade in a device — as in M’s case — than to document that a crime has occurred.

NPR reviewed two dozen cases that have made their way into criminal or civil courts and found that punishments are uneven for use of spying tools. In a 2007 case, a man in Austin, Texas, who used software called SpyRecon against his wife got a four-year prison sentence. Meanwhile in 2011, an appeals court found that a Minnesota man who used a GPS tracker on his wife did not break the law because she was not the sole owner of their car (similar to M’s case).

Randy Kessler, an attorney based in Atlanta, says candidly about his clients: “I see it in their eyes. I tell them: ‘Don’t do it.’ But they still do it. And you know personally, if it was in my life, I’d be tempted.”

NPR intern Mollie Simon contributed to this report.
This report first appeared on NPR.


Mr. Kessler quoted by the Huffington Post

9 Mistakes That Will End Up Costing You In Divorce Court

Divorce attorneys share their tricks of the trade.
By Brittany Wong

Want to win your divorce ― or at least come out financially secure?

Take it from divorce attorneys and don’t make any of these common mistakes that almost always end up costing people who decide to litigate.

1. Going to court without a lawyer.

“This is the No. 1 mistake. Yes, you might do fine, but lawyers ― good lawyers who are in court often ― will know the procedures, the etiquette, the judge’s likes and dislikes and many other things that can be invaluable. You often only have one chance at a good result. Hedge your bets, improve your odds, get a good lawyer. Or at least consult with a lawyer ahead of time to better understand the process.” ― Randall Kessler, a divorce attorney in Atlanta, Georgia

2. Not being prepared with your paperwork.

“If the judge asks you a question and you don’t have a good answer, there’s a very good chance they won’t be pleased. For example, if you show up to court for a hearing where you are seeking a reduction in financial support, you better have documentation ready to prove your income and debts. If the judge asks for something and you don’t have it, that won’t help your case.” ― Jason Levoy, an attorney and divorce coach in New York City

3. Not meeting with or talking to your lawyer about the trial ahead of time.

“Trial is unknown territory for most people and learning what to expect is crucial. Practice, practice, practice. And if possible, go watch another case ahead of time to see and feel the courtroom environment.” ― Kessler

4. Dressing inappropriately.

“Like it or not, appearances count. If you walk into court looking like a hot mess, you’re going to have a harder time convincing a judge that you should have 50/50 parenting time and joint custody of your kids. Yes, I know that doesn’t seem fair. Sorry, but judges are human, too. And if you walk into court wearing expensive clothing and jewelry, good luck convincing the court that you don’t have enough money to pay your child support.” ― Karen Covy, a divorce attorney and coach in Chicago

5. Making unreasonable demands.

“Don’t overreach. Many people think that in order to get $500 per month, they need to ask for $1,000 per month. But this may well come off as greedy and overreaching. Make a reasonable proposal. The judge is looking for a reasonable solution.” ― Kessler

6. Not turning off your cell phone before you walk into court.

“Judges are busy. They have a lot of cases to cover, and they don’t appreciate being interrupted. Anything that beeps, buzzes or rings in a courtroom will draw the judge’s attention to you in a way you definitely are not going to want. Even using your cell phone in court is considered disrespectful. So, when you walk into the courtroom, leave your cell phone in your pocket.” ― Covy

7. Interrupting the judge.

“This is a big no-no. Tape your mouth shut if you have to, but interrupting a judge while they are speaking will get you nowhere fast. I always tell people to write their thoughts on paper so you don’t forget, but wait for your turn to speak. You will get it. Nothing pisses off a judge more than a litigant who interrupts them.” ― Levoy

8. Giving the court clerk and other courtroom personnel attitude.

“The judge may be the one who makes decisions in your case, but the judge’s clerk is the one who makes sure the courtroom is running the way the judge wants. If you piss off the clerk, you will also anger the judge. (Plus, the clerk will probably make sure your case gets called dead last that day.)” ― Covy

9. Being angry.

“Judges do not like angry people, even if the anger is justified. Be polite, sweet and endearing. The judge is a person who will be deciding how to help you through this mess and it is much better if the judge likes you. Even if you are 100 percent in the right, present your situation politely ― it makes a difference.” ― Kessler

Quotes were edited and condensed for clarity. This article originally appeared in the Huffington Post


Randy Kessler interviewed on HLN about Steve Wynn allegations


How To Bring Up A Prenup Without Sounding Like A Jerk

Originally published at Huffington Post

Divorce attorneys share advice for approaching a subject guaranteed to cause tension.

Prenuptial agreements are on the rise, particularly among millennials.

In a recent survey of American Academy of Matrimonial Lawyers, 62 percent of the lawyers polled said they saw an increase in the number of clients seeking prenups during the previous three years. And more than half of the attorneys said they’d seen an uptick in the number of millennials requesting prenuptial agreements.

The prevalence of prenups doesn’t make asking your partner to sign one any easier, though. To make the conversation less thorny, we asked divorce attorneys to share their advice for best ways to ask for a fair, equitable prenup.

1. Have the conversation as early as possible.
This is a delicate, uncomfortable conversation, but if it’s something that genuinely matters to you, you owe it to your partner to bring it up as soon as possible, said Lisa Helfend Meyer, a family law attorney in Los Angeles.

“In fact, bring up the subject when you are still dating,” Meyer said. “That way, you can gauge your partner’s reaction to one. If the reaction is to move to the other room, then you know you will need to handle with extra sensitivity.”

2. Know that it’s going to be a weird, heavy conversation.
There’s no way around it: Broaching the subject is going to cause some tension in your relationship, said Atlanta-based divorce attorney Randall Kessler. In his 30 years in family law, he’s rarely heard of a prenup conversation that’s been hiccup-free.

“I’ve heard all kinds of approaches. What usually seems to work best is the truth,” Kessler said. “Say something along the lines of, ‘My family and I have always discussed and agreed that if I or my brother ever got married, we would sign a prenup,’ or, ’My best friend went through a horrible divorce and all he can remember from it is his lawyer saying, ‘If only you had signed a prenuptial agreement.’”

If you communicate your wishes in an open and honest way, and your S.O. respects that, you’re very likely on the road to a solid relationship, Kessler added.

3. Emphasize how much of a headache you’ll be saving yourselves later.
Ultimately, a prenup has the power to uncomplicate a messy, knotty personal situation, said Carla Schiff Donnelly, an attorney in Pittsburgh.

“Emphasize the fact that a prenup will simplify a divorce and make it quicker, less expensive and less emotionally taxing,” Donnelly told HuffPost. “That will benefit both your fiancée and any future children.”

4. Remind your partner that all relationships end one way or another. You’re just trying to make the inevitable easier.
One way to introduce the idea of a prenup is to talk about how you’d each want to be treated at the end of your marriage, said Katherine Eisold Miller, a divorce attorney in New Rochelle, New York.

“All marriages end, one way or another. Instead of saying, ‘I can’t marry you until we have a prenup,’ try framing it this way: ‘At the end of our marriage, whether it ends in death, as we anticipate, or divorce, what would be important to you and how would you like to be treated?’”

Then, pivot and ask your partner if they’d be open to hearing what would matter most to you in either case.

“A prenup should do something for both people and give them some certainty in difficult times,” Eisold Miller said. “A conversation like this allows for both voices to be heard.”

5. Point out that a good prenup benefits the lower-earning spouse, too.
If you’re worried about coming across as greedy or penny-pinching by bringing this up, remember that a carefully written, thoughtful prenup protects both parties, Kessler said.

“Sometimes, the prenuptial agreement is even more valuable to the less-wealthy spouse because it gives him or her some security about finances in the event of a divorce,” he said.

6. Suggest that you co-create the agreement.
Don’t make this a weird power play: Both partners should be active participants in drafting the prenup to ensure that it’s equitable, said Dennis A. Cohen, a family law attorney and mediator in Marina del Rey, California.

“The trick is to make this a co-created agreement that deals with both of your concerns, not just the partner who has substantially more income or assets than the other,” Cohen said. “It may be helpful to have a neutral mediator help you reach an agreement that addresses both of your needs and desires.”

Regardless of how you go about it, end the conversation with a promise to be fair and reasonable throughout the process, and actively listen to your partner’s concerns.

“This is, after all, a person you love and want to marry,” Cohen said. “Keeping that uppermost in your mind, words and deeds will result in you coming up with an agreement that works for both of you.”


Mr. Kessler to moderate Judge’s Panel at “Insiders Guide to the Fulton Family Division”

3 CLE hours, including 1 Professionalism hour & 1 Trial Practice hour

The Insider’s Guide Seminar is designed to give those who represent clients in Family Law cases in Fulton County a better understanding of the operation of the Family Division. Judges, Judicial Officers, and Staff Attorneys from the Family Division will discuss, in facilitated panels, their insights and suggestions regarding practice before the Division. Topics will include all facets of family law practice, with special emphasis on difficult cases. Each session will provide the opportunity for attendees to ask questions of the panelists.

REGISTRATION FEES
Atlanta Bar Member: $75
Non-Member: $100
Student: $15


PROGRAM AGENDA

8:15 AM:  Welcome and Opening Remarks
Judge Christopher S. Brasher, Chief Judge
Fulton County Superior Court Family Division 

8:30 AM:  Temporary Hearings, Discovery Disputes, and Trials, OH MY!
Panel Discussions with Family Division Staff Attorneys
Moderator:  Kyla Lines, Richardson, Bloom & Lines, LLC

Heidi G. Neal, Staff Attorney to Honorable Ural D. Glanville
Jessica Cummings, Staff Attorney to Honorable Jane C. Barwick
Crystal Conway-Johnson, Staff Attorney to Honorable Belinda E. Edwards
Frances Mulderig, Staff Attorney to Honorable Christopher S. Brasher

9:30 AM:  Break

9:45 AM:  30 and 60 Day Conferences and Beyond: Making the Most of Your Judicial Officer Time
Panel Discussion with Family Division Judicial Officers
Moderator:  Gary Alembik, Alembik & Alembik

Honorable Margaret M. Dorsey, Judicial Officer
Honorable Fatima Harris Felton, Judicial Officer
Honorable Divida Gude, Judicial Officer
Honorable Alison K. Arce, Judicial Officer
Honorable Roslyn G. Holcomb, Judicial Officer
Honorable Tamika Hrombowski-Houston, Judicial Officer
Honorable Carole Powell, Judicial Officer

10:45 AM:  Break
11:00 AM:  Trials, Problems and Solutions in High Conflict Family Cases
Panel Discussion with Family Division Superior Court Judges
Moderator:  Randall M. Kessler, Kessler & Solomiany LLC

Honorable Jane C. Barwick
Honorable Belinda E. Edwards
Honorable Ural D. Glanville
Honorable Christopher S. Brasher

12:00 PM:  Concluding Remarks (Judge Brasher)