At this point, your education about the basics of the laws that will apply to the dissolution of your marriage should be nearly complete. If you have not done so already, I encourage you to make a list of all of your questions about how the law might apply to your situation, so that you can go over those questions when you meet with an attorney later in the process.
Until that time, we’ve included short explanations of several other legal issues that sometimes will relate to divorce.
“No Fault” Grounds for Divorce:
There is a misconception among many people I meet that obtaining a divorce requires proof of “fault,” such as adultery, abandonment, or cruelty. This was true several decades ago, but as of 2010, every state in the United States of America allows “no fault divorce.” In most jurisdictions, all that needs to happen to obtain a divorce is one spouse alleging that there are “irreconcilable differences” in the marriage. In other words, if you want to get a divorce, you can get a divorce, and there is really nothing your spouse can do to stop the process.
Incapacity to Get Divorced:
The exception to the “no fault” automatic divorce in some jurisdictions, including in Florida where I practice, is that if one spouse is legally incapacitated (such as in a coma or found to be legally incompetent) the divorce can be delayed for three years.
Although I have seen nefarious spouses pretend to be legally insane to invoke this exception to the no-fault divorce law for bargaining purposes, this rarely ever happens. As a practical matter, the three year “incapacity waiting period” is rarely a real problem because in most instances people will be focused on initially caring for their spouse and not divorcing them, and the risks relating to incurring liabilities for medical care can be hedged by filing a divorce petition or postnuptial agreement.
In the age of the “internet of everything,” it seems like almost all of what we do leaves an electronic footprint somewhere. As a result, the actions of ourselves and our family are even easier to track, especially with the advent of services like the “iCloud,” which allows emails and text messages (once the secret conduit of affairs) to show up on multiple devices (including that old iPad you forgot about, and allowed your spouse to use). Further, with the use of spyware and recording programs, the amount of information that can be obtained is almost limitless.
In most instances, courts consider information on shared devices or accounts to be “fair game” to accumulation by both people in a divorce. Further, there is usually not going to be a problem if you use a shared password or standard password to access and gather electronic information. The theory is that the sharing of an account or password equates to your spouse’s consent to you having the information.
Many courts look at electronic accounts with shared passwords as the digital equivalent of an unlocked physical file cabinet sitting in the marital home. There is no law against going into and copying paper files in that unlocked file cabinet in your home office. So, why would it be a problem to access a shared electronic file? Although the laws can vary between jurisdictions, obtaining digital information usually only becomes a problem if passwords, information, or access was obtained using illegal spyware programs.
As it relates to recording, to be safe, it is illegal in most jurisdictions to record phone calls or conversations in private places without notice to the other party (this is why most customer service phone numbers state up front that the call “may” be recorded) or the recording is not obvious. However, conversations can be recorded in public places where there would be no expectation of privacy. Furthermore, video recording (without audio) can be done in most circumstances without notice.
As it relates to vehicle tracking, most jurisdictions allow you to have GPS monitoring devices on a vehicle, if you are on the title to that vehicle. This means, you could get in trouble for putting a tracking device on your spouse’s car, if your name is not on the title. That said, it is very difficult to prove who implanted a tracking device, and the utility of such devices are starting to become obsolete, now that most phones can be tracked through shared account settings.
Domestic Violence & Restraining Orders:
If your spouse abuses you physically or threatens to harm you, then you should call the police immediately and seek protection from every available option in your jurisdiction. In most jurisdictions, there is a process to obtain a restraining order (sometimes called an injunction) if your spouse has physically harmed you or created a reasonable fear of imminent harm to you.
Once one of these orders is issued, your spouse is usually required to stay away from you and cease all communication with you. The courts take violation of restraining orders/injunctions very seriously. Usually, someone will be jailed for violating the terms of a restraining order/injunction.
Freezing Bank Accounts:
In some instances, when a marital estate is concentrated in one or two bank accounts, there is a legitimate fear that a spouse will “take the money and run” or otherwise transfer the money to unknown accounts, thereby making the divorce a game of “find the money” or at least more complicated than necessary.
If this is the case, most jurisdictions provide a process for temporarily “freezing” an account. Sometimes, this can be done without a court order and merely by a notice from your lawyer (called a “lis pendens”) to a financial institution, stating that an account is being claimed by you as part of a divorce case. Most banks, at least initially, err on the side of caution, and will freeze major transactions in an account upon receiving such a notice, out of fear of being sued later.