I meet with prospective Rhode Island divorce clients almost monthly who tell me they have positive proof that their spouse has had an affair. Naturally, I listen to what the client and/or prospective client has to say about the alleged affair and consider what the person has to say and present as their proof.
Honestly, most people don't have the "proof" they believe they have. This is not because they don't have "something" which gives them the indication that an affair has taken place. It is simply that what the person has as their "proof" either isn't "evidence" that the court would consider or it is something that it would be very circumstantial if it were accepted as evidence by the Rhode Island Family Court at all.
The hot topic that comes up nationwide these days has to do with using electronic documents as evidence. What I'm referring to is emails, texts, phone bill records, or internet page printouts such as those you might find from Facebook account pages.
Consider this example:
Bill: Hello, May I speak with Attorney Pearsall?
Attorney Pearsall: Speaking. How may I help you?
Bill: My name is William but I go by "Bill"
Attorney Pearsall: Okay Bill it is! What can I do for you Bill?
Bill: I already hired a lawyer for a divorce in Kent County Family Court but I don't agree with what she's telling me.
Attorney Pearsall: Okay...?
Bill: Well, I need a second opinion on several things that she is telling me.
Attorney Pearsall: Okay Bill, I will be happy to do that but I only provide legal advice in the context of a Divorce Coaching and Advice Session. Remember, divorce and family law is what I do for my living.
Bill: I can understand that. Okay, I've read your articles and I'd like to do that right now if you have time . .
[ Bill and I talk and Bill makes arrangements for an immediate Divorce Coaching and Advice Session with an affordable payment via phone.]
Attorney Pearsall: Okay Bill, now let's get to the important part. Tell me what has you concerned.
Bill: Well, I want to file for divorce based upon adultery. I have all the proof that my wife cheated on me. But my lawyer wants me to file based on irreconcilable differences. She says that it's not a good idea to file based on adultery and I don't have the right proof. She just keeps saying the same thing to me but she doesn't explain it. Can I tell you what I have and you can tell me why it's not a good idea or why I don't have the "right proof?"
Attorney Pearsall: Sure Bill. Tell me what happened and what proof you have.
Bill: Well we've been married four (4) years. After two years our marriage really wasn't working. All of a sudden she wanted to have kids but we had discusssed before we got married that neither of us really wanted kids. It wasn't until after she started babysitting my sister's kid that all of a sudden she wanted kids.
To make a long story short, we started arguing alot about having kids. She told me about a year ago that she wanted a divorce but she never did anything to file for divorce.
Anyway, about two months ago I went to the computer and it was still logged into her email. I saw the email that was on the screen and it talked about meeting some guy again and how their first night together was magical. So whether it was right or not, I looked through her email and found out that she had been meeting some guy she met on Facebook and that they planned to meet twice at the local Holiday Inn.
So, I printed out all her emails. Chris, they show a pattern of how she planned to meet with this guy at Holiday Inn. I remember that my wife didn't come home on those nights. She had told me that she was going to spend the night at her mom's house because her brother was going to be back in town and she wanted to see him but he might not get there until very late. Later I found out that her brother wasn't anywhere around here. Her brother was actually on vacation in Arizona.
To make a long story short, I confronted Brenda about it.
Attorney Pearsall: Is that your wife's name?
Bill: Oh, Sorry. Yes, Brenda is my wife.
[ Pause ]
Bill: Brenda just yelled and yelled about how I invaded her privacy. The next day while I was at work she moved out of our apartment and she left me a note on the counter saying she wants a divorce.
So I hired a divorce lawyer and I wanted to file for divorce based on adultery. I told my attorney everything I just told you and gave her copies of the emails I printed out as well as the note Brenda left on the counter.
[ Bill was quiet. ]
Attorney Pearsall: So your present attorney has essentially told you that filing for adultery doesn't make sense and that you don't have the proof you need for the adultery in your case, is that about right?
Bill: Yeah, that's about right. It doesn't make sense. It's an open and shut case with these emails I have. Am I right? Or is my attorney just afraid to file for divorce based on adultery or what?
Attorney Pearsall: Bill, since I'm not in the mind of your attorney I can't tell you exactly what she's thinking but as a Rhode Island lawyer I would probably come to the same conclusion. Let me explain why so you don't seem so frustrated.
First, many people don't understand what it means to choose the grounds for their divorce. Why did you want to file based specifically upon "adultery" Bill?
Bill: Well, it just makes sense. She cheated on me. That's adultery, isn't it? So that's the right one to choose. I just chose the right one because that's what happened to me.
Attorney Pearsall: And Bill, I'm sure that makes perfect sense to you. Now, did your present attorney explain to you why it was not a good idea to use that one?
Bill: No. She just said it was not the right one to use and that I didn't have the proof.
Attorney Pearsall: Okay, now just bear with me here a minute Bill. I think the difficulty here is that your divorce attorney didn't explain things to you.
Now, answer this question for me. Do you want a divorce from your wife? I mean, is there any hope here.
Bill: No Chris. I'm done. I made a mistake and our marriage just isn't ever going to work out.
Attorney Pearsall: Okay Bill. Now when you go to court do you want your divorce to be easier or harder for you?
Bill: [Pausing..a bit confused.] I want it to go easier of course. I mean I don't want this long and drawn out or anything.
Attorney Pearsall: That makes perfect sense. Do you think it would be an easier and shorter case if when you and your attorney present your case to the judge it was an open and shut case or if the judge had a harder time deciding the case.
Bill: That's common sense Chris. If the judge can see everything clearly and it's a no-brainer then I'm going to have an easier case.
Attorney Pearsall: Then you probably know that the judge has to have evidence that is pretty clear for it to be a no-brainer and make it easy on you, right?
Bill: I agree with you but I don't get your point.
Attorney Pearsall: That's okay Bill. I'll explain that right now.
When you file a divorce based upon "adultery", you are making your case harder for the judge, for your attorney and for you because it is based on the fault of one party in the divorce. In order to get your divorce granted based on the adultery that you want to use, you and your attorney have to prove that your spouse committed adultery for the judge.
That proof has to be pretty solid Bill. Sometimes circumstantial evidence like those emails just doesn't do it. In fact, sometimes your wife's attorney can get them thrown out because you can't prove they are authentic to the court. Remember, you believe they are authentic but your attorney has to prove it under the Rhode Island Rules of Evidence before the judge can accept those emails.
Bill: But it's clear Chris. It's a no-brainer.
Attorney Pearsall: I'm not going to sugar coat this for you Bill. You paid me for good legal advice and I need to give it to you even if it's not what you want to hear. You didn't call me so I could lie to you, did you?
Bill: [Sighing . . .] No Chris. Go ahead and tell me. I want to know the truth.
Attorney Pearsall: Great. Bill, the truth is that the Rhode Island Family Court Judges know that today it's easy for a person to print up fake emails. Let me ask you, do you have your wife's password to her email account?
Bill: Yes, but what does that have to do with anything? I found my wife's emails by accident, not because I invaded her privacy. If her email account hadn't been open and left on the screen I never would have gone found them or printed them.
Attorney Pearsall: Let's not get off track Bill. Just follow me. So you're telling me you have your wife's email password, right?
Attorney Pearsall: So do you know how to create a free email account anywhere on the internet?
Bill: Sure. I have one myself at Yahoo.com
Attorney Pearsall: Now this guy you think your wife had an affair with, what did his email address end in.
Bill: It was one at Gmail. You know, @gmail.com.
Attorney Pearsall: Now you can get a free gmail address can't you?
Bill: Yes? So what. [. . a bit of frustration in his voice . . ]
Attorney Pearsall: So if you really wanted to you could create a free gmail address and then get into your wife's account and send emails back and forth to yourself and make it sound in those emails like an affair was going on, couldn't you!
Bill: I suppose so.
Attorney Pearsall: Are you any good with computers Bill?
Bill: Pretty good, yes.
Attorney Pearsall: Do you think you could create some phony emails on paper that look like the ones you printed out if you really wanted to?
Bill: Yeah, if I took some time I'm sure I could do it.
Attorney Pearsall: Okay. Now have you ever heard of anyone hacking into an email account and sending emails to someone as if they were someone else?
Bill: I've received a few. Then my friends would call me and tell me "I didn't send that Bill. Someone got into my damn email account."
Attorney Pearsall: Okay, good enough.
Bill: Chris where are you going with all this? I didn't do any of those things and I'm not the kind of person who would do that.
Attorney Pearsall: That's what you're telling me Bill. Just like you might tell a judge, right?
Bill: I suppose so.
Attorney Pearsall: But the fact is the judge has to be convinced under the RI Rules of Evidence that what you are presenting is not hearsay or gives the judge some reason to let the judge consider it. One of the biggest factors is whether or not it is believable or not based upon whether you can authenticate the email. Well, what can you really assure the court of here?
Let's see, you can tell the court that you printed a document that was on your computer screen. But for the rest of them you went into an open account that you think was your wife's account. So you didn't send the emails, you didn't receive the emails, you didn't type any of those emails, you didn't see those emails being typed by the sender or the recipient, you didn't see any particular person send or receive those emails or read them, and your wife didn't admit she sent or received them, did she?
Bill: Yes, that's all correct.
Attorney Pearsall: You know your wife's password and you know how to create a free account. You've heard that email accounts can be hacked into and that phony emails have been sent. In fact you even said you could probably create phony emails that would look pretty close to the ones you printed out.
Now imagine the judge sitting on the bench thinking about all this. How is the court supposed to believe that the emails are genuine or know who sent them or who received them? You see the court isn't supposed to jump to conclusions on these things. They need these kinds of proof so they are at least reasonably sure the emails are genuine, who they came from, who they were sent to, where and when.
Bill: Okay, I get it. So how is the court supposed to believe that these emails are real, right?
Attorney Pearsall: Exactly. So that may be why your attorney is saying that what you have really isn't proof of the affair. You'd have to have more than that. It's not absolutely necessary to see the two people in the middle of intercourse. Strong circumstancial evidence may be enough. For instance, if you waited outside a motel and first saw your wife check into a room. You kept watching that room's door and you see a man go in a little bit later. Then you stay up all night without falling asleep and you watched the door and no one came out until early morning when you see your wife come out in the morning buttoning her blouse. Now THAT you can testify about as evidence. If you are able to subpoena the motel owner and his or her log book showing that your wife signed into the log book at the time and on the date you testify she was there, then that would be stronger circumstancial evidence.
Bill: So that's it. I just need to have more evidence like that. That's all there is to it?
Attorney Pearsall: That's only one peice of the puzzle Bill. You and your attorney have to be able to prove that your wife's affair with this guy was the actual cause of the breakdown of your marriage because you selected "adultery" as your grounds for divorce.
Attorney Pearsall: Do you see the problem Bill? You said yourself that the marriage wasn't working after two years and that you two had a huge problem fighting in your marriage because she changed her mind about wanting to have children. It was only about a year ago that she told you that she wanted a divorce. That's what you told me.
Attorney Pearsall: And did you tell these same things to the attorney you have now?
Bill: Yeah, I did.
Attorney Pearsall: So you see, it's not really a no-brainer. In fact, unless you were to lie to the court then even if your wife did have an affair, that wasn't the cause of the breakdown of your marriage. If the court heard these things as they should, the court would likely to conclude just like I have that your marriage had already broken down a year or so before, it was just a matter of who was going to file for divorce and when. Add that to all the problems with the emails and it isn't the right grounds to use for your divorce and you really don't have the proof you need.
Bill: Okay, I understand now but why couldn't my divorce attorney just tell me that.
Attorney Pearsall: Well, you just paid me to explain it to you, right? So if your divorce lawyer had to explain this to you she would most likely have had to bill you for it. Since she's the lawyer maybe she just expected that since you hired her that it was better if you just trusted her professional expertise and saved some money.
Bill: But she must have seen how frustrated I was by this. If she had to bill me then at least I would have understood and I wouldn't have had to come to you to understand these things and question whether she knew what the heck she was doing.
Attorney Pearsall: I understand Bill. But let me ask you this, did you save money by coming to me to get your questions answered?
Bill: Well, yeah. I saved about $125.00.
Attorney Pearsall: There you go Bill. No harm, no foul. You've got your answers and I agree with your attorney and you still saved $125.00 in legal fees. I'm certainly not going to find any fault with your attorney at all over what we've discussed. Is there anything more I can answer for you. I could give you a few more minutes if you like.
Bill: No, I actually have to get going Chris but thanks for helping me to understand these things. This was great. I feel much better now. I have to run. Thanks Chris.
Attorney Pearsall: My pleasure Bill. I still get paid even for phone advice but I try to make it affordable.
Bill: What you charged me was more than reasonable. Don't be surprised if I have to call you again.
Attorney Pearsall: I'm here when you need me Bill.
Today's Rhode Island Divorce Coach Quick Tip
Most things that people usually consider "proof" are often not considered "evidence" that is acceptable before the court. It's good to remember this when addressing the court or when speaking with your Rhode Island Divorce lawyer. Remember that what you consider "proof" may not be allowed as "evidence."