What's a family law mediator and divorce coach like me doing writing about some techy new way to leverage cell tower location data to support or refute a claim for the termination of alimony? Isn't mediation about resolving disputes without the need for litigation?
While mediation's goal is to facilitate the resolution of disputes without the need for protracted and costly litigation, it doesn't ignore the utility of basic discovery tools available to assist the parties in negotiating settlements. Let's examine an underlying dispute regarding cohabitation and alimony, and review how the use of cell tower location data could motivate the parties towards a more timely and cost-effective resolution.
In today's modern economy, the recipient of alimony is gender-neutral. Gone are the days of Mad Men's Betty Draper, who stayed at home to raise the children, while Husband, Don, was working at the advertising firm. For better or worse, today's modern woman is equally at risk of a spousal support obligation, just as her male counterpart of yesteryear. Just as the alimony burden is gender-ignorant, so too is the desire to see it end as quickly as possible.
Imagine this scenario: Wife is a senior executive in the fashion industry earning six-figures. Husband was laid off from his employment as a mobile-pager salesman eight years ago, and decided to stay at home to take care of the kids and household. Husband and Wife divorce, agreeing that alimony is predicated on Husband's need for (and Wife's ability to pay) spousal support for a period of 10 years. The triggering of the termination of alimony would be death of either party, Husband's remarriage or cohabitation with a member of the opposite sex. Post-divorce, Husband becomes involved in what appears to any outsider to be a serious, long-term relationship with a woman, who does his food shopping, cleans his house, and vacations with him. Wife suspects that the woman is living with her former Husband, and after waiting several months, confronts him, alleging that he and his new girlfriend are cohabitating. Husband denies the allegations and says that the girlfriend leaves the house every night at 11:00 p.m. and doesn't return until the following morning.
While the definition of cohabitation varies from jurisdiction to jurisdiction, typically it is shown by evidence of financial, social and sexual interdependence, including living together in the same residence. Therefore, as a basic starting point, the ability to prove or disprove the whereabouts of ex-Husband's new girlfriend may become the centerpiece of the dispute. The nature of the dispute creates an inherent imbalance of power because (1) the girlfriend is not a party to the lawsuit, and may not be subject to some of the discovery tools traditionally available; and (2) the spouse receiving alimony can engage in a "catch me if you can" behavior, leaving the payer ex-spouse frustrated and unable to establish key elements of the case. Can this imbalance of power be neutralized?
Yes. In this example, by obtaining the girlfriend's cell phone records, alimony-payer ex-Wife will be able to determine the number of overnights spent at former Husband's residence, thereby establishing one key element of the cohabitation claim, namely, living together in the same residence. While overnight stays are not the only criteria required to prove a supportive relationship, they are an important element to establish or disprove.
Cell tower location data is objective evidence, and extremely persuasive when used in courtroom arguments, mediation or settlement negotiations. The information revealed can level the playing field in termination of alimony cases by eliminating the "he said/she said" aspect of quantifying the number of overnights in controversy. Piece-by-piece, the case begins to come together... or fall apart. In this example, the same records could have been used by the ex-Husband, to refute the allegations that he was violating the terms of the divorce agreement. Mutual benefits include:
• Leveling the playing field for both parties
o Data can be used to prove key elements of cohabitation claims
o Data can be used to disprove key elements of cohabitation claims
• Eliminates the "he said/she said" aspect of discovery
• May assist in assessing the credibility of witness testimony by supporting or refuting prior statements
• Provides objective, non-biased, and incontrovertible evidence of the whereabouts of a person
• Reduces the need for the intrusiveness and costs associated with private investigations
The termination of alimony is a touchy subject for those paying or receiving the financial support post-divorce. Proving cohabitation is a challenging, costly proposition that inevitably puts the parties at odds, and often results in the spur of new litigation. How could this information have been productively used in mediation discussions in this scenario? First, the knowledge that this data exists could have avoided the costs related to private investigators for 24/7 video surveillance of ex-Husband's residence. Second, the availability of this information could have avoided some of the legal costs and expenses related to discovery. Third, there could have been opportunity to accept a reasonable settlement offer, including a reduction or modification of alimony, rather than immediate termination. Cell tower Location data creates a balance of power in cohabitation claims, where the living arrangements are at issue, and operates to either support or refute claims for termination of alimony.
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