Just When You Thought You Were Through: Post-Divorce Mistakes and How to Avoid Them - Part 1

 

Frank and Betty were married for twenty years, two of which they spent divorcing.

 

Frank owned part of a profitable trucking company. As news spread that Frank and his business partners planned to sell the company, Betty eagerly pushed her attorney to retrieve a share of the cash. After protracted litigation and settlement negotiations, Frank, Betty and their attorneys arrived at a nineteen page settlement agreement. In exchange for Betty’s release of her marital rights in the business, Frank would pay her $25,000 within 30 days of receipt of the buyer’s first purchase price payment, then $202,000 in semiannual payments of at least $10,000 until the balance was paid in full. Frank thought the deal was solid. He negotiated the semiannual payments to coincide with the dates he anticipated receiving purchase price payments from the buyer. He even negotiated his payments to be conditional on the buyer’s, so that if the buyer failed to pay, he would not have to pay Betty. To Frank, Betty was a fool for accepting this deal – if Frank did not get his money, Betty would not get hers.


The problem? Frank did get his money, but not the $10,000 he hoped. Turns out, the buyer’s purchase agreement with Frank’s business included a loophole through which the purchase price would fall as the market price fell. The market tanked. Frank went back to his judge and complained that Betty should receive less because they either intended her payments to rise and fall as his from the buyer did (Betty guffawed) or, alternatively, a reduced price was only fair. judge thought the reduced price was fair, with sympathy for penniless Frank.

 

But Betty brought that written settlement agreement to the appellate court and pointed out exactly what they agreed – not a price reduction loophole to be found. The appellate court reversed the judge’s decision and rebuked Frank: “[Frank] wants the trial court to make a property settlement for him that he did not make for himself . . . . The only mistake of the parties was with respect to the final purchase price of the stock. . . . It must be assumed that the parties considered the risks of the property settlement agreement that they made . . . .” See Marshall v Marshall, 135 Mich App 702; 355 NW2d 661 (1984).

 

Frank would have no out from under that settlement agreement He owed Betty all $227,000, with interest, even though his business deal soured and he got a trifling of it.

 

In most states, once parties have negotiated and entered into a settlement agreement that the divorce court then incorporates into a decree, the court cannot modify the agreement absent fraud, duress or mutual mistake. So, what can you do to avoid Frank’s mistake and others like it? Here are some suggestions.

 

 

Mistake #1: You Forgot The IRS[1]

You know the saying, “There are two certain things in life: death and taxes.” Yet, when it comes to negotiating a divorce settlement (which sometimes feels like death), too many spouses fail to consider the tax consequences of their settlement. They focus on what appears to be a big win (keeping the house, getting the boat) without focusing on the tax costs. It may be obvious to you that a checking account with a $50,000 deposit and immediate accessibility is not the same as a $50,000 deferred compensation retirement account, but there are subtler tax issues to consider as you settle, too:

 

Transfers of property between spouses or former spouses incident to their divorce are generally tax free. See IRC 1041. This means the transferor spouse does not have to report a discharge of indebtedness, nor the transferee spouse income, for the transfer when filing the tax return for the year of the transfer. This does not mean, however, that there are no tax consequences. Under IRC 1041, the transferee spouse takes the transferor spouse’s basis and holding period in the property. The transferor spouse must provide the transferee spouse with sufficient documentation to determine the basis and the holding period. Treas Reg 1.1041-1T, Q7. When the transferee spouse disposes of the property, the transferee spouse pays taxes on the entire disposition. This is, in a sense, a delayed tax. For example, if during the marriage each spouse would have bore 50% of their stock’s $50,000 appreciation, after divorce the burden is 100% the transferee spouse’s. Therefore, be mindful of the basis and the holding period transferred to you whenever you accept property in your settlement.  

 

The most important thing for you to do is plan ahead. Consider all tax consequences early in your settlement discussions. A simple chart listing all of your property, with a column for fair market value, a column for outstanding debt, a column for pre-tax value and a column for estimated tax costs will help you and your attorney. So too will a tax adviser. Have you tax adviser review the final draft of your settlement before you sign it, and ask for a thorough assessment from a tax perspective. It is better to pay for these services now than to find out, ten years from now, that you have to report $50,000 of gain. The court will not listen to you complain that you did not anticipate the tax consequences. As the Michigan Court of Appeals said of an ex-husband making that argument, “His claim regarding unexpected income taxes is, of course, without merit. He either knew, or should have known, of the income tax consequences of his actions. . . . [W]e decline to permit plaintiff to use his income taxes as a basis for a [modification].” Couzens v Couzens, 140 Mich App 423; 364 NW2d 340 (1985).

 

MORE TO COME…


[1] You should contact a tax attorney and/or your tax advisor for a thorough assessment of the tax laws applicable to you. IRS Circular 230 Disclosure: To ensure compliance with requirements imposed by the IRS, be advised that any federal tax advice contained in this article was not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein. Always consult a specialist for thorough tax advice.

THE TOOTH FAIRY STORY AND OTHER TIMES TO BITE YOUR TONGUE

 

 

They had five teeth between them, in a sandwich bag tucked amid sweatshirts and socks. Mom always sent them with extra, even in the summertime, as if Dad hadn’t enough. He did. What’s that? he said, tugging at the bag. The teeth jingled. Mommy says the Tooth Fairy won’t come to her house because she’s too poor, they replied, yanking the bag out and plopping it on the bedroom pillows. She said we should bring these to your house because the Tooth Fairy likes people with money.

 

Will was so upset when he told me this story, his face turned red and he started drumming his fingers pointedly against my desk. The pens clanked. What did you say? I asked.

 

The temptation: Your mother’s a no-good-sunnuva . . .  a liar and a cheapskate.

The reality: I didn’t say anything.

 

Good. There’s a war of words waging between exes, sometimes subtle like the Tooth Fairy story, sometimes blatant and yelling loud as can be. They fight over school, sports, new girlfriends and boyfriends, stepmoms and stepdads, who pays what share for summer camp, whether McDonald’s is dinner or a treat, everything under the sun and then some. It is so, so easy to snap back. But that old adage You better bite your tongue is never truer. What you say will come back to against you. And your children.

 

You should consider a non-disparagement clause instead.

 

What is a non-disparagement clause?

What’s to stop your ex from stringing a line of slur words in front of your name? More than most non-lawyers think. Under the circumstances, you may have an action for defamation, libel or slander. These are lawsuits for defaming your name without justification in written or spoken communication. However, unless the circumstances are particularly devastating (e.g., your ex spread so many rumors about you not a boss in your town or the next five will hire you), or you are willing to pay a lawyer a pretty penny just for the cause, these lawsuits are unhelpful tools for solving the problem. They cost more than they are worth, and they do not modify your custody order for your children.  Instead, for child custody cases, one of the most helpful legal tools is the non-disparagement clause.

 

A non-disparagement clause is a clause in a custody order that requires each parent to refrain from disparaging the other parent in their child’s presence. In other words, whenever the child is around, neither parent can say something that might impair the child’s relationship with and regard for the other parent. For example, neither parent could say something like, “Your father is a no-good-rotten-little . . .” or “Your mother doesn’t care what time you get home because she’s too busy with her boyfriend.”       The purposes for this clause are many – to encourage the child’s relationship with both parents, see, e.g., MCL 722.27a, to keep the parents’ personal squabbles between them, not between them with their child stuck in the middle, to give each parent a sense of security the other is not planting seeds of hatred during parenting time (e.g., “You don’t want to go to Daddy’s house anymore, do you?”) are a few examples. The theory is, without those nasty comments, the child and the parent are more likely to bond, free from the other parent’s personal anger.

 

 

What does a non-disparagement clause look like?

Non-disparagement clauses are as varied as the attorneys writing them and the families needing them.      At a minimum, they must be sufficiently clear to apprise each parent of what conduct is not allowed, but you can otherwise be creative with yours.

 

A general non-disparagement clause might go something like this:

            “Each party shall take all measures deemed advisable to foster a feeling of affection between the child and the other party. Neither party shall say or do anything that may estrange the child from the other party or impair the child’s high regard for the other party.”

 

But what if you and your ex-spouse rely heavily on electronic communication, e-mails or texts?:

            “Each party shall take all measures deemed advisable to foster a feeling of affection between the child and the other party. Neither party shall say or do anything that may estrange the child from the other party or impair the child’s high regard for the other party. This means, for example and not by way of limitation, each party shall refrain from all spoken and written statements and communication, including electronic communication, that the child may hear, read, receive or have access to that may estrange the child from the other party or impair the child’s high regard for the other party. ”

 

And what if your ex-spouse despises your new spouse?:

            “Each party shall take all measures deemed advisable to foster a feeling of affection between the child and the other party. Neither party shall say or do anything that may estrange the child from the other party or impair the child’s high regard for the other party. This means, for example and not by way of limitation, neither party shall say or do anything about or toward a third party in the child’s presence that may estrange the child from the other party or impair the child’s high regard for the other party. ”

 

Be sure to discuss any language with an attorney before you include it in your decree. You must understand it, your soon-to-be-ex must understand it, and it must withstand all of the what-ifs. A big what-if is the judge who will accept your decree. You must be sufficiently vague to pass judicial scrutiny (no crazy clauses about having to pass a purple pencil to the person entitled to speak, as if you were in student government again, and certainly no illegal clauses) but sufficiently clear to know what you and your ex should not do and when methods of enforcement you can pursue.

 

Enforce how?

Will you have to make like 007 and carry a hidden microphone, desperate to catch your ex in a disparaging rant? No, most of the time.

 

Before you record any conversation, discuss your reasons with an attorney, thoroughly, or you could commit a crime. Federal and state laws prohibit surprisingly more surveillance than most people think. For example, the Federal Wiretapping Act (FWA) prohibits most methods for recording conversations.  The pertinent part of the FWA is 18 USC § 2511(1), which provides that violations occur when one:

 

   (a) intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication;
   (b) intentionally uses, endeavors to use, or procures any other person to use or endeavor to use any electronic, mechanical, or other device to intercept any oral communication when--  (i) such device is affixed to, or otherwise transmits a signal through, a wire, cable, or other like connection used in wire communication; or (ii) such device transmits communications by radio, or interferes with the transmission of such communication; or (iii) such person knows, or has reason to know, that such device or any component thereof has been sent through the mail or transported in interstate or foreign commerce.

 

The FWA does contain an important exception commonly known as “the consent exception” or   “the participant rule.” According to 18 USC § 2511, it is not unlawful under the FWA for most of us to intercept a wire, oral, or electronic communication if we are a party to the communication or where one of the parties to the communication has given us prior consent to the interception.

 

State privacy laws also may apply, however, and you could run afoul of them if you record conversations.

 

Therefore, unless absolutely necessary, and then only after discussing it with an attorney, avoid recording conversations with your ex.  Instead, bring a trusty witness who can testify, credibly, that your ex said this, that or the other thing disparaging about you. Be sure to keep a journal of disparaging remarks, too. This will help you track their frequency and severity, and it will refresh your memory if you pursue court action. An isolated remark one stressful day is probably not enough for court action, but a series of remarks traced in your journal, or one grave remark on a special day, may be.

 

Most of all, do not be afraid to take court action. Non-disparagement clauses are court orders designed to preserve your relationship with your children. The powers of contempt of court support them, and they support one of the most important constitutional rights in the United States: our rights to our children. Consider these enforcement options:

 

Motion to Clarify: Lofty non-disparagement clauses can be ambiguous. Attorneys have a habit of using more words than necessary (e.g., “You shall not say, utter, speak, indicate . . .”) particularly when they have to write a clause pleasing to everybody. For example, does “Do not disparage the other party or the party’s decisions” include a second wife an ex-husband decides to marry or just the decision to remarry? If your clause is ambiguous, ask your court to clarify it. A motion to clarify asks the court to interpret what a clause meant when issued, according to the circumstances at that time. That is, what did the clause mean on the date the court granted the divorce? What did the court and the parties contemplate at that time? If you are certain that your interpretation is correct, try this motion.

 

Motion to Modify: What if your interpretation of the clause is incorrect? Ask your court to modify it. A motion to modify asks the court to change a clause based on circumstances that have occurred since the court issued the decree. Each jurisdiction uses a threshold, or standard, to prevent parents from coming to court repeatedly for modifications. In general, there must be a “change in circumstances” or “proper cause” since the decree before the court will consider a modification. However, if you couch the motion as a motion to modify a term, rather than a motion to modify custody, you might avoid this threshold. In most jurisdictions, terms, like non-disparagement clauses, should change as the child’s interests and the parents’ needs change.

 

Motion for Contempt:  If your ex does disregard your clause, ask the court to compel her action and to hold her in contempt for not acting before. A motion to compel asks the court to bring the opposing party before the court to explain why he or she disregards the court’s orders and to impose an appropriate remedy, which may include an order requiring action, contempt sanctions, fines, jail-time, costs attorney fees, family therapy or loss of parenting time.  

 

Most of all, do not snap an angry or curse-laden or crazy or otherwise curt comment back. Stoop to that disparaging level, and you could be the one in contempt. Better to keep your children’s parenting time and bite your tongue.

WHAT’S IN A NAME? Dealing With Name Change At Divorce -- Or Not

 

Jack Smith’s ex-wife sent him a ranting letter every month -- asking why their house had not sold -- and every month sealed the letter with the same address label, one of those free labels that come in droves with holiday themes and “Mr. and Mrs.” so-and-so -- Joselyn Smith. It was annoying enough that she sent the letter. He wanted to keep the house, but the judge ordered them sell it and split the profits or debt. It was an extra kick that she still used her married name on those address labels. They had been divorced and trying to sell their home for a year, and she clung to that last name as if out of spite. She used it on her driver’s license, her stationery,     her e-mail signature, her credit cards, her online profile, everywhere. And she was not what you would call a wholesome ex-wife -- she had a reputation for fighting, for gossiping, for spending, for partying. But Jack could not force her to change her name.

 

That debate you had before your marriage -- should your wife change her last name or keep her maiden name, hyphenate it or use both --  will resurface when you divorce. If your ex-wife will not change her last name, can you force her to? The short answer is, No. But there are exceptions.

 

State laws allow a person to adopt almost any name for almost any reason. This may be informally through usage or formally through a court order. In many states, one may adopt a name at will, by, for example, using it for employment, for doing business, for socializing, etc. This is “change by usage,” and the name change  is legally recognized, as if the individual had obtained a court ordered name change, unless the use is fraudulent. In all states, one may also petition the court for an ordered name change. The procedures vary by state, but, in general, the court will require a certain length of residency in the state and testimony that the individual is not ducking from a crime or engaged in fraud. (e.g., changing a name to avoid paying bills).      This “change by court order” is often required for banks, businesses and government agencies.

 

So long as the new name is not fraudulent, frivolous or scandalous, the state will accept it.     For example, a judge will probably not approve a change to the name “Kid Rock” (to trick people into believing you are the rock star) as fraudulent, the name “KFC Chicken” (or your favorite food) as frivolous, or the name “[explicative]ed” (maybe you feel that way after your divorce) as scandalous. But that standard is not as high as it seems -- witness the names P. Diddy and Chad Ochocinco.

 

That means, you (and your ex) may use almost any name for any reason or for no reason at all.

 

That also means, a married woman need not adopt her husband’s last name -- and, when she’s divorced, she need not give up her husband’s last name, either. So long as she is not engaged in fraud, frivolity or scandal when deciding to retain his last name, she can keep it no matter how mad he is.

 

But does that mean your ex-wife can change your child’s last name to almost any name for almost any reason or no reason at all? No. Parents may disagree whether their child should use the father’s last name or the mother’s maiden name, a hyphenated name, the custodial parent’s new spouse’s last name, or, for unmarried parents, whose last name to use at all. In many states, if the parents are unmarried, the decision is the mother’s, see, e.g., Garling v Spiering, 203 Mich App 1; 512 NW2d 12 (1993), unless both parents acknowledge paternity in a state-approved written document before at the child’s birth. If the parents are married or acknowledge paternity, then neither parent may select or change the child’s last name absent the other’s consent or a court order. Over one parent’s objection, a judge may select the child’s last name  if the judge determines that the name is in the child’s best interests, see, e.g., Rappleye v Rappleye, 183 Mich App 396; 454 NW2d 231 (1990), or if the noncustodial parent has not contributed to the support of or maintained contact with the child, id.

 

If someone in your family does change names, be sure to update, at a minimum:

 

Social Security Administration: To update a Social Security Card, complete Form SS-5, the application for a Social Security Card, and mail or hand deliver it to any local office with proof of citizenship, such as a birth certificate or a passport, and a certified copy of the order for the name change, such as a divorce decree. You can learn more online at www.ssa.gov.

 

Passport Agency:  To update a passport, mail or hand deliver a Renewal Application, along with two color photographs, proof of citizenship, such as a birth certificate, and     an original or certified copy of the order for the name change. Regional passport agencies may process applications the same day, for a special fee, but for most applications         the agency retains the documents and returns them by mail with the updated passport. You can learn more online at www.dos.gov/passport.

 

Department of Motor Vehicles: Most state departments of motor vehicles will update a driver’s license upon receipt of an application, a copy of the current driver’s license, and proof of the name change, such as a certified divorce decree. (And, of course, a fee). Contact the local branch office to learn more.

 

Schools: For children, school staff, including teachers and medical personnel, should receive a copy of the order for the name change and a letter explaining what rights the parent with the different last name has. It is common for teachers to assume, for example, that a father with a different last name does not have “rights” to the child and, therefore, cannot consent to school discipline or receive notice of school events or emergencies.

 

Support Disbursement Unit: For cases with child or spousal support orders paid through the State Disbursement Unit (also known as the Title IV-D program or the IV-D service), notify the SDU of the name change immediately, in most states within  21 days of any name change. Otherwise, the SDU may not credit payments to the payor’s account or send them to the payee. The change could take several weeks to complete, so keep accurate records of all payments made and all receipts to correct any accounting errors between the date the SDU receives notice of the name change and the date the SDU updates the account. The SDU is a large agency, and errors happen. Contact an attorney in your area or the SDU to learn more.

 

And don’t worry about those address label companies -- they’ll send labels in droves without your asking.

Texts, Tweets and Other Ways NOT to Talk

 

With a few swift key strikes, your case could go down in flames. If you think I’m exaggerating, think about Tiger Woods, Jesse James or, for you Detroiters, Kwame Kilpatrick, and think again.  It’s easy in our social networking gluttony, where friends from way-back-when are an internet connection away and your computer keyboard is your sounding board, to rant about your case. After all, it is mostly free, you don’t have to pay your lawyer or your therapist to listen to you, your spouse or ex is not your friend or follower, everyone who is your friend and follower wants to know what’s going on, and a status update or a wall post is the easiest way to tell them how you feel – exactly how you feel. And that’s the problem.

 

Litigation does a whirlwind on your psyche.  You will have to sign paperwork your attorney could explain to you ten times over and you still won’t understand. (“So, ‘hold harmless’ means what?,” you ask). You will have to sit in a courtroom and watch a judge listen to your case as if the judge (1) is mad at you or (2) will not listen to you or your attorney or (3) both.  You will have to pay a lot of money, it seems, to get what you want. (If you pay for good work now, you will save yourself from having to pay a lot more to correct the work later.) And, so, you will at times lose your sanity, get angry or want revenge, or all of these things and then some, and be lured into that electronic community where you can vent at the click of the “Enter” key for free.  

 

However, one at-the-moment, flippant text, tweet or post could live an eternity against you.

 

WHAT THEY ARE: E-ADMISSIONS

We call these texts, tweets, status updates, wall posts, etc., e-admissions. “E” because they are electronic. “Admissions” because they are the social networking era’s version of the law’s classic oral or written statement from the opponent – the possibly fatal statement that bursts into the middle of trial on a tape recorder or through a friend or a PI and proves your opponent is a liar or did X and not Y.

 

But isn’t an out-of-court statement hearsay, you ask? Yes, but not from your opponent. “Hearsay” is an out-of-court statement or assertive conduct offered to prove the truth of        the matter asserted (e.g., offering “John did this” to prove John really did do this). Hearsay is inadmissible as substantive evidence (to prove a fact in issue) unless an exception applies. Hearsay exceptions include dying declarations, excited utterances, present sense impressions, and tens of others for each jurisdiction. For example, witness Bill could not testify that “I heard X tell Y that the defendant killed the victim” unless a hearsay exception applied (perhaps X yelled in a fit of excitement).

 

 

“Admissions” are a party’s out-of-court statement or assertive conduct used against him or her.      For example, defendant wife’s e-mail from tax season that she under-reported profits from the part-time hair salon she runs out of her basement is an admission if plaintiff husband offers that statement against her (e.g., to prove that she earns an income to pay her attorney fees). All jurisdictions characterize these statements as non-hearsay. Therefore, they are not subject to the hearsay rules, and the offering party need not find one of those tens of hearsay exceptions to apply before offering it into evidence. See, e.g., MRE 801(d)(1).

 

HOW THEY HURT: YOU CAN’T UNRING A BELL

Just as you can offer the judge or jury your opponent’s crushing e-admissions, your opponent can offer yours.

 

The party may offer the admission into substantive evidence, i.e. to prove the matter asserted. For example, revenge-driven plaintiff wife’s lawyer could admit an e-mail of remorseful defendant husband apologizing for “gambling away our savings” or “taking that trip with my secretary because I didn’t care what you and the kids did at Christmas,” which husband thought wife would appreciate, this sincere apology, to prove that husband gambled the parties to debt or cares more about sex than his children. Or, lawyer might print husband’s status updates and tweets, in which he ranted about “having to go to court with that B****” and “refusing to give her a dime” to prove that husband disparages his children’s mother and only wants to avoid paying child support. Or, lawyer may demand text messages to prove husband harassed her.

 

Even if they are inaccurate, untrue or heat-of-the-moment and poorly-thought-out comments, these admissions will do considerable damage to your case. Once the judge or jury hears them, that is it. Although your lawyer may request a limiting instruction so that the statements apply for some things (e.g. the speaker’s credibility) and not others (e.g., the truth), it is impossible to forget a damaging statement. As the saying goes, “You can’t un-ring a bell.” Once they’re heard, they will not be forgotten.

 

Granted, there are, as almost always in the law, exceptions. For example, admissions may not be admissible if they are made in connection with a criminal case later expunged,                    plea negotiations, settlement discussions or certain civil infractions. See, e.g., Pizzillo v Pizzillo, 884 SW2d 749 (Tenn Ct App 1994) (memorandum of father’s admissions to child abuse in criminal case could not be admitted into evidence in later divorce case when criminal case record expunged).

 

More often, however, they are stored or saved somewhere in the e-universe, just a printer and a few sheets of paper away from becoming crushing blows in your case.

 

WHAT TO DO: OLD SCHOOL IT

How do you avoid that? The best thing to do is old school it – quit the texting and tweeting and updating altogether. (Be careful closing your accounts, however, and thoroughly discuss your plans with a lawyer, because some courts punish you for destroying e-evidence.) Do not update your accounts, post pictures, talk about your case with them, or do anything but leave them. Talk to someone you trust, be he or she your lawyer, therapist, friend or family, instead, privately and preferably in person, out of others’ earshot and without writing anything down.

 

If you are too connected to your social network to quit, however, keep these tips in mind:

 

Never post pictures of your new car, clothes, trips, etc.:  Your judge or jury is interested in seeing how you live. A few hours’ testimony is helpful but not nearly as impactful as a few pictures of you driving a new car or posing on the beach during your vacation. If you claim you cannot pay your spouse’s attorney fees, spousal support or child support,  bragging pictures of new purchases are a death-knell.

 

Never assume your spouse is not a friend: Your spouse will read what you post. She will use a fake friend or a friend-of-a-friend, she could send a subpoena or she may compel you to print all of your postings (with a penalty of jail-time for contempt if you refuse). Unless she has committed fraud or has intercepted electronic communications in violation of federal law, those statements will come into evidence to hurt you.

 

Never type immediately before or after your court appearance: Court appearances are stressful, and when the event or results are not ideal or are confusing, or both, you will want to rant.

 

Never make new e-friends: New “friends” are a cheap and easy way to spy on a spouse. Avoid adding friends you do not know, have not spoken to in years, or know through your spouse, to your accounts. They have probably been sent to spy on you.

 

Never type  without thinking, “How will this sound in court?”: Think about every statement you make and ask yourself, “Would this sound bad in court?” and “How can I make this sound good, yet be sincere?” For example, forget, “I’m sorry I spent the weekend with Shelly and not the kids.” Go with, “I’m sorry I had a momentary lapse in judgment; I am usually so focused on spending the weekend with the kids, as I have repeatedly during our marriage.”

 

When in doubt over that new post, skip “ENTER” and press “DELETE.” Otherwise, you could spend thousands fighting a case not over property and testimony, the time-tested evidence, but a la Jerry Springer over texts and tweets.