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Category: Discovery

What Can I Do if My Spouse is Hiding Assets?

Hidingmoney-163502_640 money in a divorce is not just wrong – it’s illegal. If you believe your spouse is hiding money in your Alabama divorce case, here are some tips you can follow to uncover the truth. In many cases, one spouse alone is responsible for managing the money and paying the bills. Often, the other spouse has very little idea of the total assets and debts. In a divorce, this spouse can be at a disadvantage financially. After all, it’s easy to hide something if no one knows it exists. That is why anyone considering divorce should take stock of all assets and debts immediately to help avoid the issue of hidden assets.

Step 1. Retrieve records, paperwork, and statements.

Retrieve your tax reports, bank statements, credit card statements, retirement statements, and loan statements for the last three years. If you or your spouse owns a business, get the business tax reports and financial filings as well. The IRS allows you to access prior tax returns easily. Often you can view and print bank statements, credit card statements, and loan statements online. If you cannot, simply call the institution and ask them to send you the statements. They may tell you they charge a small research fee, however if you plead your case, they sometimes will provide these statements free of charge.

Step 2. Analyze all statements thoroughly.

This is the tedious part! Grab a notebook, a highlighter, and a pen. Begin with any loan statements. Search for any unusual or suspicious withdrawals. If you find any, highlight them. Then, find the most recent statement and write down the balance. Next move on to your credit card statements and do the same. Finally, review your bank statements. Look for unusual cash withdrawals or large expenditures. Also keep an eye out for recurring charges that do not look familiar. If you are unsure about a charge, often a quick search on Google will help you identify the vendor. Highlight any unusual purchases or withdrawals, and again make note of your balances. Finally, review your tax returns. Unless your spouse is hiding money from the IRS as well, these should indicate income. If you are familiar with the business, you can analyze the tax returns. However, you may want to hire an accountant as these can be technical and difficult to understand.

Step 3. Hire a forensic accountant, if necessary.

A forensic accountant investigates accounts and financial records in order to determine if they are accurate or if they show evidence of deception. A forensic accountant is fairly expensive, and should be reserved for cases involving significant assets. In such cases, however, a forensic accountant can be invaluable! A forensic accountant can sniff out signs of fraud, such as overpaying creditors or creating fake debt. If your case involves a business or sizeable assets, a forensic accountant can ensure those assets are fairly valued and that you, therefore, receive what you deserve. A forensic accountant can also testify in court to these facts and, given their background, their testimony carries great weight.

After you have arranged and analyzed your financial records, an experienced Alabama divorce attorney can help you determine if you need a forensic accountant on your case. At the Zwiebel Law Firm, LLC, we will work diligently to ensure that you receive a fair divorce settlement. Contact us today at (205)623-1001. 

 

Text and Email messages as evidence in Divorce cases.

In April 2015, The Alabama Court of Civil Appeals decided Smith v. Smith, 2015 (Ala. Civ. App. April 3, 2015).  It was a case where the mother's text messages were admitted as evidence of her trying to buy prescription drugs illegally from a non-party.  Those text messages were verified by the non-party testifying that she indeed received the text messages from the mother.  The court noted that they decided whether proper authentication of emails would make them admissible in court.  Culp v. State, was the case they previously decided the issue of e-mails.  Simply the Court noted that circumstantial evidence such as emails or text messages only had to be established to be what they were claimed to be and that was sufficient.  Such circumstantial evidence could include the following:

  1. Email Addresses;
  2. cell phone number;
  3. screen names connected with the message;
  4. content of the messages;
  5. style of writing; or
  6. metadata

The Court went on to say that the evidence needs to establish only a reasonable probability that the document is what it is claimed to be.  After that is done, then the messages are admitted and it goes to the weight.  In fact, business records may show that a particular message came from a particular computer or phone and that would be reasonable enough to show that the person had access to the computer or phone to make the messages admissible.  Other forms of authentication can be by distinctive characteristics like appearance, contents, and ways that the person talks normally. 

In this case, because the receiver/sender of the messages testified to their authenticity, they were admitted.  The Court can judge a person's creditability at the time the person testifies.  If the Court did not think the testimony was truthful, they could disregard the admitted text messages since the judge gets to determine how much weight to give each item admitted into court.  More information can be found on the web http://bit.ly/1TOm2yM
http://bit.ly/1WA7LKq
 

 

How Divorce Affects Retirement Plans And Being Financially Savvy.

  Divorce and your retirement savings.

In a recent study by researchers at the University of Connecticut, Social Security Administration, and National Institute of Aging they looked at the Census Bureau and Social Security data for the 40-year period from 1968 to 2008.  They compiled over 2,000 women who divorced from 1968 to 2008.  When looking at the data, the results were surprising.  Those divorced spouses who were forced to enter into the work force were able to save more for retirement years than those who remarried. 

During marriage today couples need to save for retirement individually which is a different mindset than in previous years.  In the years pre 1970 women who stayed at home did not save for retirement and instead depended upon their husband's savings plan for their retirement.  The issue that arises is when that long term marriage ends and the woman has to seek out legal help to get a portion of her husband's retirement so that she will have some savings later in life. 

Married couples who have a plan in place for the wife or husband to stay at home with the children need to formulate a separate savings plan for retirement.  Even the stay-at-home spouse needs to be able to contribute to their own retirement account.  This new financial way of thinking has now been considered the better option.  Then when faced with divorce each party has their own retirement funds and the need to divide one spouse's account is lessened especially in cases where they have even amounts saved and there is not fault in the marriage.

This new financial planning comes on the heels of the study where it was proven that when stay-at-home spouses are forced to enter the work force following divorce, they become financially savvy with savings for retirement.  The now employed spouse has to start fresh most often times with no savings at all.  Only those couples in a long term marriage are those divorcing couples who are looking at separating a retirement account through divorce.  In Alabama a long term marriage is considered to be a marriage over 10 years.  That definition sometimes hurts those couples who live together, raise children together, act as married couples for several years and then decide to formalize their marriage.  The date of marriage then becomes the yard stick at calculating the number of years.  The disadvantage comes in when a spouse has been with their spouse prior to marriage for many years.  Those years are not counted toward that 10 year mark. If then they were not financially savvy enough to save for retirement, they are starting a new post divorce life with no retirement funds.

In the world of divorce, it is vital that you seek legal advice when it comes to the division of assets and financial accounts.  Dividing financial accounts and assets that can turn into a retirement benefit can be very litigious.  Having the right attorney can make the difference in your post divorce retirement funds.  Judge's have the power to enter Orders that divide retirement accounts and ensure no tax consequences for either party if they are rolled over into another retirement account.  Our attorneys have experience with long term marriages and the financial impacts that divorce creates on those spouses.  We have tools to assist you complete your financial picture with a real solution to your divorce issues.  Call us today (205)623-1001 to get real solutions. We have great resources on our site at http://birminghamdivorcefirm.com

 

Pyschological Evaluations, Divorce, and Child Custody

Counseling-Mental-HealthIn divorce and especially child custody matters, psychological evaluations are a tool that your attorney can utilize to determine the mental well-being of a child's parents.  Unlike any other type of case, divorces involving child custody are special in that respect.  Psychological evaluations can pinpoint mental illness that may make a parent not suitable to have physical full time custody of a child.  Behaviors that may put the child at risk for neglect or abuse can easily be detected in a psychological evaluation. 

As far as the divorce or child custody cases are concerned, a psychological evaluation can be a useful too to negotiate a settlement if it yields issues that a parent may be better suited than the other.  Psychological evaluations are typically performed by a licensed psychiatrists with tests and evaluators that are not available to other professions.  Attorneys faced with difficult child custody cases often request a psych eval to determine if their client or the opposing party is masking some mental illness or issues that would affect their ability to care for the child.

Most parents are amazed that they may be forced to sit for a psych eval.  Some cite their constitutional rights to examination are being violated.  However, when child custody is at issue a psych eval can easily be ordered.  Scrutiny of a parent's mental state is always available to be explored during child custody cases.  If you feel that the other parent is not mentally capable of caring for your child during times of visitation, it would be good to ask your attorney to file for a psych eval.  You will need specific instances of when they demonstrated a behavior that suggests issues with their mental health.  If you think you may be involved in a child custody case whether divorce related or through a DHR case, you should consult an attorney immediately.  Call today (205) 623-1001.  Do not go without representation. 

Discovery, Depositions in Divorce

In all divorce and family law cases there are several types of methods to gain much needed discovery or evidence to assist in the case.  There is written discovery which is commonly sent out in the beginning and which are typically in the form of interrogatories, request for production of documents and request for admissions.  These are questions that your attorney can assist you with in formulating responses and objections to them as necessary.  Other forms are depositions or oral testimony taken under oath before a court reporter and motions for blood tests, etc.

Depositions are more commonly done in cases these days to gain much needed answers to questions under oath.  These occur in either your attorney's office or in the opposing party's office.  A court reporter is present who also conducts the oath and takes down your testimony.  During this event, it is vital that you tell the truth since anything brought out in deposition can be used to impeach you once you are on the stand in court.  Impeachment is one way an attorney can demonstrate your ability to speak the truth.  The judge considers your integrity during testimony and if it is demonstrated that you may have lied a prior time or during your testimony in court, the judge can consider that when making decisions.

Depositions are requested as a matter of right during a civil case such as a divorce, child custody, child support or other cases.  Either party may request a deposition under oath prior to trial and its compliance can be enforced by court order.  During depositions, your counsel may stipulate to usual stipulations.  This only means that the objections to relevance, hearsay, etc will be saved for use at trial when a judge can make a ruling at the appropriate time.  Attorneys typically do this and then the only objection made during deposition is to the form of the question.  Therefore evidence in the form of testimony that may not be relevant to the case at hand may be asked during the deposition.  This does not mean it can be used at trial.  Typically attorneys will argue that the requested information is reasonably calculated to "lead" to the discovery of admissible evidence.  The rules of discovery are interpreted broadly and most times a court will allow any question during deposition or the discovery phase.  Only at trial will the admissibility of such evidence be considered and ruled upon.

Now, the truth about depositions, they are EXPENSIVE!  This is a tool that costs the client money that is unavoidable.  The costs of the attendance of the court reporter, the costs of the transcript and the costs of the presence of their attorney during the deposition.  In some cases, this is used to "bleed" the opposing party of money they need to for the costs of their legal representation.  While this not always the case, it has been done.  The usefulness of a deposition is countless.  Many times during depositions discovery of evidence comes to light that is very helpful in cases.  Plus it gives the attorney a much needed view of the opposing party's reaction to certain questions.  It is very difficult for people to contain their emotions which will give the attorney information on their "hot spots."

At trial a deposition transcript may be used as impeachment evidence and to refresh a person's memory.  There are many uses but these seem most prevalent. Along with the added information on how the person may behave and react to certain topics, an attorney has the transcript of the deposition in their tool bag.

In my practice, I try to limit the amount of expense in every case.  Depositions are a tool that is used only after every other effort at gaining the information has been exhausted.  With that said, if the opposing party requests a deposition as a matter of right, it must be done.

If you need help with a family law matter including divorce, child custody, child support, adoptions, or alimony cases, call us today 205-623-1001.

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