CNN is running a story today that discusses the use by a litigant of a "sex tape." The tape itself seems to be of the husband and the wife, and the anchor of the news program is taking calls to poll the audience as to how far the gloves need to come off, when a husband and wife are divorcing. One of the spouses wishes to use the private sex tape as "ammunition" in the divorce. Part of my practice is aggressive litigation, and the other part collaborative practice and negotiated settlements. I am a trial lawyer, and have been since the first days I was a lawyer, in the 1980's. I am always comfortable employing any evidence that I feel will benefit my client's reasoned goals in a case. Is having a sex tape useful? My guess is that, in most cases, it is not. Illinois does not assess the conduct of the parties in dividing assets and liabilities. Sexual behaviors of a parent may or may not be a factor with respect to a custody issue in the case. Certainly, a sex tape made by the parents, expected to be held private, likely makes the 'leaker' of the tape look bad. Revenge is a dish best served cold, as the adage goes, but revenge really has no place in a divorce case, unless as a litigant you wish to have more stress, acrimony, and spend more money on legal fees. No one wants that. My view is that a 'sex tape" of one of the parents may be a factor in a custody issue. Certainly, a 'sex tape' made with a paramour is suggestive of poor judgment, poor impulse control, high risk behavior, and possibly psychological or personality disorder issues. As in any litigated case, having evidence is just one consideration…the value and probative quality of the evidence is of more importance. So, if you're divorcing and angry, don't threaten to disclose a private sex tape made with your spouse. You won't receive any more assets from the judge, and you may earn his or her scorn by publishing something that most of us would consider a private, non-evidentiary item.
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