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Best Practices for Valuing and Locating Digital Assets During Your Divorce

By Gregory Gilston, Esquire

March 1, 2023

Divorce is a difficult and emotional process, and it can become even more complicated when digital assets are involved. In today's world, many couples have accumulated significant digital assets, including cryptocurrencies, NFTs, digital photos and videos, social media accounts, and even online businesses. In this blog post, we'll explore some best practices for valuing and locating digital assets during a divorce.

1. Understand what constitutes a digital asset -- The first step in valuing and locating digital assets during a divorce is to understand what qualifies as a digital asset. This can include:

  • Cryptocurrencies such as Bitcoin, Ethereum, and Litecoin

  • Non-Fungible Tokens (NFTs)

  • Digital files such as photos, videos, and music

  • Social media accounts such as Facebook, Instagram, and Twitter

  • Online businesses and intellectual property such as websites and domain names

  • Digital storage devices such as external hard drives and cloud storage accounts

2. Gather all relevant information -- Once you have identified the digital assets in question, it is important to gather all relevant information about them. This includes login credentials, passwords, and any associated email addresses or phone numbers. Without this information, it may be difficult or even impossible to access the digital assets and accurately value them.

3. Work with a digital asset expert -- Valuing digital assets can be complex, especially when it comes to cryptocurrencies and online businesses. Consider working with a digital asset expert who can help you navigate these assets and accurately value them.

4. Use tools to locate digital assets -- Locating digital assets can be challenging, especially if one spouse is attempting to hide them. There are a number of tools available that can help you locate digital assets, including:

  • Digital forensic software that can uncover hidden files and folders

  • Blockchain explorers that can track cryptocurrency transactions

  • Social media monitoring tools that can track account activity and logins

5. Document everything -- It is essential to document everything related to digital assets during a divorce. This includes all communications between the parties, as well as any documentation related to the assets themselves. This documentation will be important in the event of any disputes or legal proceedings related to the digital assets.

In conclusion, valuing and locating digital assets during a divorce can be a complex and challenging process. However, by following these best practices, you can help ensure that all digital assets are properly accounted for and that you receive your fair share of these assets during your divorce. If you are unsure about how to proceed, consider consulting with a legal or financial expert who can help guide you through the process.

For more information on this topic, join me for an upcoming Strafford live webinar, "Digital Assets in Divorce" on Tuesday, May 2, 1:00pm-2:30pm EDT. Click this link for more information:

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Tips and tools for avoiding familial conflict during the upcoming holiday season…

By Gregory Gilston, Esquire

November 1, 2o22

With the holiday season fast approaching, people around the country are preparing to break bread with their family members. While many individuals embrace the holiday season and the cheerful vibes associated therewith, this time of the year can be very difficult for many people as well. If you are in the midst of an ongoing custody disagreement, or if your marriage is headed towards divorce, you may very well fall into this category of individuals who are dreading the upcoming holiday season.

Though your impending family interactions may seem daunting, it is important to employ certain tips and tools to minimize conflict along the way. Otherwise, interactions involving custody exchanges can turn into custody woes, conversations with in-laws can turn into screaming matches, and dinner with your soon-to-be ex-spouse can result in broken dishes and doors.

The goal should always be to have your family relationships remain conflict-free throughout the holiday season and beyond. Here are some recommendations for ways to stay civil and transparent with the opposing party in your family law matter during the holidays:

Tip #1: Communicate respectfully…

Ensure that all communications regarding custody exchanges are in writing, and well-documented. In order to accomplish this, co-parents involved in ongoing custody litigation should utilize the Our Family Wizard (OFW) platform to communicate about custody exchanges, holiday schedules, drop-off times/locations, pick-up times/locations, and coverage when one parent is unavailable. The OFW platform helps parents keep tabs on their co-parenting communications, and helps parents stay mindful of what they say to each other, and how they say it.

While some practitioners view this platform as a method for building evidence against the other parent, this platform is most effective when used as a platform for holding parents accountable, and keeping conversations focused and civil. There is a small monthly fee associated with OFW, but the burden of the cost of ongoing litigation far outweighs the burden of the subscription costs.

Tip #2: Get in, get out…

If you are driving your child(ren) to or from a custody exchange, make it quick. If you are dropping them off, say what you need to say to your child(ren) during the ride to the custody exchange. Upon arriving at the exchange location, help the kids gather their belongings and see them into the car of the other parent, without making a fuss. Wave goodbye to your child(ren), get back in your car, and drive away. If you are sad to see them go and need to shed a tear, try to refrain from displaying any emotions until you have driven away. If you have concerns about the child’s safety in the other’s parent’s vehicle (i.e.: if one parent does not have a car seat), respectfully send a written request confirming that the safety concern has been resolved, prior to the custody exchange.

The last thing you want to happen at a custody exchange is for an argument to ensue because the conditions of the exchange make you feel uneasy. While you may be justified with your concerns, the other parent may not understand your point of view which could lead to an argument during the exchange. If you have any ongoing concerns before entering into the custody exchange, ensure that they are addressed with the other parent before the custody exchange actually occurs. If these concerns could not have been addressed prior to the custody exchange, try to have a friend or family member accompany you to the exchange so that somebody can witness and document the events that do occur.

Tip #3: Don’t argue in front of the child(ren)…

Unfortunately, for many families in America, the end of the holiday season does not mark the end of the relational turmoil experienced amongst so many married couples today. Statistics show that the largest number of divorce filings in the United States often occur in the month of January. This is because many parents with minor children wait until January to avoid interfering with the holiday festivities -- for their children’s sake.

With that in mind, many couples on the brink of divorce end up spending the holiday season together anyway. But let’s face it; some people just can’t stand their spouse. They can’t stand to look at their partner, listen to their voice, or even eat a meal with them. And anything their spouse says or does is completely irritating.

For most people – this is a clear-cut sign that divorce may be imminent. Yet no matter how much an individual dislikes their partner, it is important for that person to try their best not to put this contemptuous behavior on display in front of the children. Ultimately, the more a person displays their relationship’s conflict in front of the children, the more likely it is that the kids will suffer as a result. Nevertheless, these attempts at avoiding conflict are sometimes unsuccessful.

If you feel like an argument is brewing during the holiday season, do not let the tension get past the point of no return. Before the tension escalates, give yourself a break. Get some air. Remove yourself from the situation. You are only human. Do not stay put in a situation where the tension is palpable.

However, it is important to remember that in every marriage it takes two to tango. If your partner is not capable of backing down, sometimes it is best to take the high road and physically remove yourself from the situation before the powder keg explodes. It may not feel like you are taking the high road at the time you walk away, but tensions generally deescalate when one party removes themselves from a tense situation. If the child(ren)’s safety seems at risk in the moment that tensions are heightened, offer them the chance to remove themselves from the situation as well. And while this is all occurring, try your best to maintain some perspective… think to yourself that it could be worse. Truth be told -- if an argument does occur, your holiday dinner will be a memorable one, but for all the wrong reasons.

Ultimately, everybody wants to enjoy the holiday season. However, some individuals do not look forward to spending time with their family members during this time of year… and for good reason! By employing these tips for avoiding and resolving conflict, perhaps your holiday season may be somewhat jollier this time around.

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How a premarital contract can help divorcing individuals avoid post-marital chaos…

By Gregory Gilston, Esquire

September 1, 2022

A Prenuptial Agreement is a legal contract signed by two individuals who plan to enter into a marital relationship with one another. Prenuptial Agreements can protect marrying individuals and their assets when the parties divorce, or when one spouse dies during the marriage. These agreements, although extremely useful at times, are often stigmatized due to the implications of having to implement the terms therein, in the event of a divorce.

Some individuals entering the marital relationship are hesitant to sign a Prenuptial Agreement, mostly because they do not want to entertain the idea that their marriage may end up in a divorce. There is a general stigma surrounding Prenuptial Agreements, as many individuals feel that they may be placing some sort of jinx or curse on their marital relationship before it even begins by considering such possibilities of divorce. Nevertheless, Prenuptial Agreements – when constructed, reviewed, and executed appropriately – can be a useful tool for minimizing conflict and costs associated with the dissolution of the marital union. When parties have signed an enforceable Prenuptial Agreement prior to their marriage, then they will often experience their divorce process more amicably, expeditiously, and efficiently.

When attempting to understand the overarching goals of a Prenuptial Agreement, it is important to first understand the overarching goals of the divorce process for divorcing individuals. When an individual retains a family law attorney to assist with dissolving their marriage, they will generally express their desire to minimize the cost, stress, and time associated with their impending divorce. From this point forward, and to avoid litigation over commonly disputed divorce issues such as spousal support or the division of marital property, family law attorneys will try work diligently with their clients, as well as with the opposing party/counsel, to structure, negotiate and memorialize the terms of a Property Settlement Agreement that best accommodates the needs of both parties. However, it is important to note that the process of negotiating a Property Settlement Agreement is not always so cut and dry. This process requires a lot of back-and-forth communication between the parties and their attorneys, in order to figure out how to best achieve a mutually beneficial outcome agreed upon by both parties. However, when there is a Prenuptial Agreement in place from the outset, then the terms written within the Prenuptial Agreement will often take precedent and will dictate the terms of the Property Settlement Agreement.

As previously mentioned, most individuals who enter into a Prenuptial Agreement will do so to protect themselves and their assets in the event of death or divorce. Therefore, when the divorce does occur, then the parties will have already mapped out the terms for their Property Settlement Agreement, which may include terms involving the distribution of marital assets, inherited assets, or alimony. However, some individuals will enter into a Prenuptial Agreement for altruistic motives, including their desire to protect their spouse’s interests in the event of death or divorce. Part of the reason why Prenuptial Agreements can be so helpful during the divorce process is because they will implement the intentions of the parties at the time when they were getting married, not at the time when they are getting divorced. This helps to prevent divorcing individuals from allowing their present emotions to interfere with the pending divorce process.

Quite often, divorcing individuals will become jaded by their feelings of resentment towards their soon-to-be ex-spouse, especially at the end of the marriage. These feelings of anger often manifest into spiteful behaviors and can cloud a divorcing individual’s judgment. As family law practitioners, we will often witness the starry-eyed newlywed who “only wants the best for their spouse no matter what” transform into the contemptuous spouse whose primary goal is “to drag out the divorce process.” This transformation does not bode well for an efficient and amicable divorce process, but generally can be circumvented through the implementation of a well-drafted, properly executed Prenuptial Agreement.

In Pennsylvania, and most other states, Prenuptial Agreements can be utilized to address the same issues that would otherwise be contained within a Divorce Order. A Prenuptial Agreement may address one or more of the following subjects:

  • each spouse's right to property owned by either spouse

  • the division of assets and debts if the couple divorces or either spouse dies

  • either spouse's entitlement to spousal support or alimony

  • each spouse's right to buy, use, spend or sell assets during the marriage

  • each spouse's right to the gifts or inheritances of the other

  • management of a family business

  • each spouse's entitlement to death benefits from the other's insurance policy, and

  • any other matter agreed upon by the couple.

While a Prenuptial Agreement can address many areas of potential conflict among couples who might separate in the future, there are limitations. Specifically, a Prenuptial Agreement cannot resolve any of the following issues:

  • the religious upbringing of children

  • temporary alimony paid while a divorce is pending

  • Child Support, or

  • Child Custody.

It is particularly important to note that Child Support and Child Custody are always modifiable. Parents cannot resolve Child Support issues in a premarital contract. This is because the child—not the parents—possesses the right to child support. Furthermore, parents and the courts cannot decide Child Support or Child Custody arrangements until the parties are separating or divorcing. When it comes to Child Custody, the child's best interests are paramount to any custody decision. Ultimately, the judge must evaluate these interests at the time the custody decision is pending, and after the parties have physically separated, not in advance.

Generally, Prenuptial Agreements in Pennsylvania will be considered enforceable, unless there is clear and convincing evidence showing that:

  • one spouse did not sign the Agreement voluntarily

  • the Agreement was unconscionable because before the parties signed:

    • one spouse did not provide full and fair disclosure of existing assets and liabilities

    • one spouse was defrauded because they did not expressly waive (in writing) the right to full and fair disclosure of the other spouse's finances, or

    • one spouse did not have adequate knowledge of the other spouse's financial situation prior to signing the Agreement.

Furthermore, before signing a Prenuptial Agreement, both parties must have the opportunity to review their agreement with an attorney. If they opt not to review their agreement with an attorney, then they must explicitly waive their right to do so. Prenuptial Agreements must follow basic contract principles, and therefore must be free of fraud, duress, or significant misrepresentation.

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