Blogs from May, 2020

Whether you are involved in a divorce proceeding or a child custody matter, litigation is often an emotional and intrusive experience. It can be made even more so through the discovery process, when you are required by the court’s rules of procedure to provide numerous types of documents to the opposing party and to the Court. If you have text messages, e-mails, or other documents that re relevant to your legal matter, then it is likely that you will need to share that evidence as part of the discovery process – and it is important that this evidence is not destroyed.

What Happens to Text Messages, E-Mails and Photos in Court?

You may be required to share documents with the opposing party in response to a Request for Production of Documents, a Deposition Notice, or a trial Subpoena. While there are surely documents that you would prefer that your spouse or the court not see (i.e. a disparaging text message, an embarrassing photograph, a receipt for an excessive purchase), you will still be required to comply with the court’s rules as to discovery and evidence, which mandate that you produce all relevant documents within your possession, custody, or control. While you may have a strong desire to prevent certain documents from ever seeing the light of day, the consequences of doing so may be end up being worse than disclosing the documents.

There is a concept under the law known as “spoliation”, which is the intentional destruction of evidence.

There is a concept under the law known as “spoliation”, which is the intentional destruction of evidence. If a judge finds that a party has intentionally destroyed a discoverable document (e-mail, text message, or otherwise), the judge has broad authority to impose sanctions against the party responsible for the destruction. The court’s sanctions may be financial in nature, with the imposition of attorney’s fees and expenses, or the sanctions may have substantive legal consequences, resulting in the dismissal of claims or allowing the fact finder to draw an inference as to the content of destroyed documents. The requirement to preserve documents applies not only to physical documents, but also to records and data that is maintained electronically, whether by you, or by a third party on your behalf.

In their consideration of claims of spoliation of evidence, the Court will look at whether: (1) there was an act of destruction; (2) the evidence was discoverable; (3) there was an intent to destroy the evidence; and (4) occurrence of the act was at a time after suit has been filed, or, if before, at a time when the filing is fairly perceived as imminent. Cumberland Insurance Group v. Delmarva Power, 226 Md.App 691 (2016). The fourth prong of the Court’s test is important to note, because spoliation sanctions may be imposed if a document is destroyed even before litigation has started.

Be Proactive

In Maryland, custody and child support are always subject to modification. With this in mind, it is important to preserve evidence even after your case has concluded. If your child is under the age of 18 and has not yet graduated from high school, it is possible that you could find yourself back before the Court on a modification of child support or custody. The day to day communications between you and your co-parent could be the very evidence that would make or break your future case. In divorce, the communications or documentation that is produced follow your divorce hearing may be relevant in the future in enforcement proceedings should either party fail to comply with the Court’s Orders.

Even if you believe there are documents in your possession, custody, or control that may be detrimental to your case, do not destroy or dispose of the evidence. It is important you bring those concerns to the attention of an attorney, rather than risk sanctions from the court. An attorney will be able to advise you about your concerns, and discuss a strategy going forward to address and mitigate any potential issues. If you are concerned that your spouse will attempt to destroy documents relevant to your case, there are steps that can be taken to put your spouse, or the custodian of relevant records, on notice that litigation is imminent and that they have a duty to preserve all evidence going forward.

At the Law Office of Shelly M. Ingram, we offer virtual consultations and mediations using Zoom, Skype, Facetime, and telephone. Contact us today to schedule a mediation or a consultation with an attorney.

There are a variety of options depending on your specific circumstances. We understand that with separation and divorce, living in separate households can be a difficult subject and can become expensive. At the Law Office of Shelly M. Ingram, our attorneys and mediators have a goal to listen to you and create options that meet your needs.

What Are My Options?

If there is an allegation of domestic violence, you can immediately petition the Court for the other spouse to be removed from the marital home. This option requires court action. At the Law Office of Shelly M. Ingram, we represent both those who have been abused, as well as those against whom abuse has been alleged.

You may also file a divorce action and ask the court for exclusive use and possession of the home. Again, this requires court intervention. It can be difficult to get the court to allow one spouse to move out, depending on the circumstances, and the vast majority of magistrates and judges throughout the State of Maryland often do not like to remove someone from a house if both spouses are living there together at the time of the hearing unless necessary. It is important to let us know all of the facts, so that the attorneys at the Law Office of Shelly M. Ingram can assist you in determining whether this is an option for you.

If the home is titled solely in your name, you may be able to file a legal action to remove the other spouse, as if that spouse was a renter. Again, in certain jurisdictions, this is a viable option.

You can also file for divorce, move out of the marital home temporarily and then ask the court to grant you a return and use and possession of the marital home.

In certain circumstances, moving out may actually be the best option. Even though it can be a difficult and expensive adjustment, looking to the future it may be the best alternative.

In certain circumstances, moving out may actually be the best option. Even though it can be a difficult and expensive adjustment, looking to the future it may be the best alternative. At the Law Office of Shelly M. Ingram, we can help you strategize how to ask for alimony, child support or other relief to assist you in moving out, if that is the only way you will be able to move forward with your divorce.

What Process is Best for Me?

We know that traditional litigation isn’t the best choice for every client. Sometimes, a client can use mediation, the collaborative process, or attorney assisted negotiation to help you resolve the dispute. We help you decide which process is right for you. Then we can guide you through each of these processes, giving you advice along the way and helping you prepare properly.

Our office offers in-person and virtual consultations and mediations using Zoom, Skype, Facetime, and telephone. Contact us today to schedule a consultation with one of our attorneys if you have additional questions or would like to discuss your options in more detail.