David Stern is a graduate of Harvard College and Harvard Law school who has practiced domestic relations law for 30 years. He has an alternate dispute resolution practice, Family Resolution Center. Recently Mr. Stern took time out of his busy schedule to answer LoveToKnow's questions on the subject of dirty divorce tricks.
LTK: What kinds of dirty divorce tricks have you seen used against a spouse?
"Dirty tricks" are usually defined by the "victim", the person upon whom the trick is being used. There are legal tricks, questionable tricks and illegal tricks, but they all have one thing in common: the trick is rationalized by the party who feels aggrieved. In the days before no-fault divorces, conduct was an important ingredient in the divorce process. If you could prove your spouse was "cheating" on you, leverage immediately inured to that spouse. If your spouse was a public figure (politician, business person, socialite) the threat of exposure changed the dynamics of resolution.
With conduct becoming less important in the economics of divorce, eavesdropping, letter opening, e-mail reading and the infamous detective hiding in the shadows with a telephoto lens on his camera are not as widely used. This is true unless the conduct is so egregious as to shock even the toughest judge or more importantly, if exposed, ruin the professional or social reputation of the other spouse. This may range from a same-sex relationship, which is becoming less shocking each year, to pedophilia, which is becoming more shocking each year. If the conduct is exposed the negotiating leverage is gone, so the frequency of use is not widely known.
Most dirty tricks fall within the financial arena. Hidden (or perceived hidden) assets/income is the most common issue in high-end divorces. Middle-class couples tend to know what they've acquired and what they earn and seldom argue over valuation. Divorce amongst couples with substantial wealth can result in production of altered, forged or completely bogus documents. These range from bank and stock accounts to deeds. Also the use of offshore accounts, until very recently, was a common practice. If the spouse can't find the money, the Court can't divide it, thus creating a premium on deceit and fraud.
LTK: Why do you feel people resort to these kinds of tactics?
It's all about money (sometimes kids, but I'm not going there). The discovery process is mostly voluntary, although there are rules governing the practice. Litigants are required to answer questions under oath (written or oral) and produce documents the other party requests. However, if you elect to lie, produce fake documents or hide assets...and get away with it, the economic playing field is tilted, giving rise to dirty tricks in the other direction-opening mail, reading emails, calling (or having someone else call) financial institutions pretending to be someone else.
LTK: Is the current legal system set up so that people feel they don't have any other choice but to resort to these kinds of tactics?
The current system is not entirely to blame. It cannot conduct discovery so it relies on the litigants to due their homework. Where the Courts need to do more in my opinion is in those circumstances when one party is found to be lying, falsifying or hiding. Sanctions including attorneys fees and 'fines' must be levied and enforced. The penalties for non-disclosure must be so great as to discourage the practice. Having said that, it's still all about money (power and control are the underlying dictators) and the larger the amount at stake, the greater the risk/reward ratio. You cannot change human nature but you can try to enforce the rules and create an environment in family law of full disclosure
LTK: What recourse does a person who has been the "victim" of dirty divorce tricks have?
Often the "victim" gets little sympathy from the Courts, especially if the trick results in a smoking gun, such as the purloined love letter or the partially-shredded bank statement showing a hidden account. As described above, the victim of non-disclosure by omission or fraud by the other party needs to discover the dirty trick and then disclose it to the Court. Hopefully, the result will be sanctions.
LTK: What advice would you give to a person going through a divorce to avoid these kinds of situations?
Be diligent, be careful, but most important - be forthcoming. Ultimately, there is very little that can be kept from exposure - be it conduct or money, so if everything is on the table, the likelihood of less contentious litigation is increased. The dirty trick file will never close in cases where expectations exceed reasonableness. By way of example, the short term, childless marriage between a wealthy public figure spouse and a spouse who feels entitled, will invariably result in rancor ... and dirty tricks. In a long-term marriage with children which fell apart for whatever reason, the parties must be candid and forthcoming and not seek an edge...an advantage. However...the emotional roller coaster of divorce often drives good people to do not good things. If divorce becomes inevitable, parties should try to find a way in which they can resolve their issues consistent with their needs and the total resources available