I passed Annie Reed Baldwin the box of tissues as tears started to roll down her cheeks. She was telling me that she had caught her husband, Sam, cheating on her. “How could he do this to me?” she said, crying harder now as she recounted how she had started to notice several months ago that Sam never put his phone down, guarding it as though it held a secret. “So one night, after he had gone to sleep, I quietly got out of bed, removed his phone from the charger on his bedside table, and searched his phone. The texts I saw between him and that floozy made me sick. I’ve lost 12 pounds since then,” she said, sniffing loudly and dabbing her eyes in the delicate way a woman does in an effort to keep some mascara on her eyelashes. I handed her another tissue.
I hadn’t seen Annie since June 23, 1993, when the elevator doors at the Empire State Building closed on her, Sam, and Sam’s son, Jonah, holding his teddy bear. She was still adorable, although perhaps a little haggard from the weight loss and betrayal. I had never been sure whether she and Sam had married. 1993, of course, was the very beginning of their relationship, and it had all seemed wonderful, and perfectly romantic — love at first sight kind of stuff. I had often wondered what had happened with them over the next 23 years. Now I knew.
Sam and Annie had gotten married in June of 1994. Annie adopted Jonah and Annie and Sam had two more children, Jennifer and Jason. The family relocated to Atlanta in 2006, having grown tired of the constant rain in Seattle. Sam’s architecture business had done exceedingly well, and the family lived in a beautiful home in Buckhead that Sam had designed. Now, Annie was sure that Sam was having an affair, and had the text messages to prove it.
“Annie, was Sam’s phone password protected?” I asked her. “Yes,” she responded. “Did he give you the password?” “No”, Annie answered. “How were you able to search his phone without the password?”, I asked. Annie told me she guessed the password correctly after a couple of tries. I hated to give her the bad news. “Annie, I’m afraid I can’t use these text messages as evidence. Since Sam did not share his passcode with you, even though you correctly guessed it, you weren’t supposed to even try. The law considers these text messages inadmissible because you broke the law to get them. We can send a subpoena to his cell phone carrier, but the phone carrier does not keep text messages for more than a few days, and some don’t keep them at all. We will send a preservation letter to the carrier immediately, but we may be limited to taking Sam’s deposition and asking questions about his affair. He can always refuse to answer the questions on the ground that the answers may incriminate him, but, unlike criminal cases, the court can infer that the answer to the question would be damaging.”
Annie started to wail. “What do I do? How do I prove that he is a lying, cheating, bastard if we can’t use those text messages and the carrier does not have them? I want him to pay for this. I should have known nobody could be as perfect as I thought he was when we met, that first time I heard him on the radio. I should have left him the first time I caught him cheating. Won’t a judge understand that I have had to put up with this type of behavior for a long time, and punish him for it?”
I gently explained that as painful as it is to her that Sam had cheated, and may possibly even be a serial cheater, courts have heard it all. Even if she can prove adultery, it may not have much of an impact on how much alimony she receives; although, since Georgia follows the equitable division principle, it may affect how the assets would be divided. No matter how bad Sam’s behavior is, however, I told Annie it is unlikely that she will be awarded all of the assets. I also explained that the worst thing that can happen is to let a perfect stranger, the judge, hear the most intimate details of her life and make a decision based on three days of testimony about a 23-year marriage.
I reassured Annie though that she would be awarded some alimony. After all, the children are all over 18 now, and since Annie hasn’t worked since Jennifer was born, it seems appropriate to think that she will receive some alimony. How much and for how long was another question altogether.
To be continued…