Divorce Litigation and the Pros and Cons of Emerging Technologies

Divorce Litigation and the Pros and Cons of Emerging Technologies

Posted on May 12th, 2015

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cell-phone-compare-mainDivorce litigation can be an extremely scary proposition for anyone.  The fears of walking into court can be expounded when a divorcing spouse is unfamiliar with the process and unfamiliar with how information gained from technological sources can be used against them in the courtroom.  Technology can also be a boon for those familiar with it and may serve as a catalyst for success in court.

This blog presents a couple “what if” scenarios and interesting facts.  As you read these scenarios and facts, consider clicking on the links below to learn more.

What if you suspect that your spouse has sent multiple text messages to his business partner concerning secret offshore accounts that he is trying to hide from you in the divorce case?  What are your options to get evidence regarding these text messages?  Do you think you can subpoena the cell phone service provider?  The hard truth is that it would be very difficult to obtain text messages from a service provider, for a variety of reasons.  First, text messages are usually purged by the phone company within approximately 3 days of the send date.  Therefore, they may not be available at all.  Given that a “Notice to Consumer” must be served on the opposing party (or their attorney) at least 10 days before a subpoena seeking these types of records could even be served on the provider (absent a court order otherwise), the timing just won’t work.  Additionally, phone companies will rely on Federal law codified in the Stored Communications Act to refuse compliance.  So what are your options?  You can send a demand to inspect your spouse’s cell phone for one.  Hire an expert familiar with accessing electronic data from cellular phones to assist you.  You can take the deposition of your spouse.  You can take the deposition of your spouse’s business partner.  You can even hire a private investigator familiar with hunting down offshore account information.  For more information about discovery, click here.

What if your spouse alleges that you committed an act of domestic violence by stalking or harassing them?  Suppose you claim that you weren’t even in the vicinity of the place your spouse alleges the DV occurred.  What can you do in defense of the restraining order claim?  Besides the obvious answer of providing an alibi through witness testimony (i.e. your friend testifies that you were with them on the date and time alleged), your cell phone may be your ticket to success.  Nearly all Smart phones have GPS technology that stores data concerning where you have been.  The data is typically stored in the phone within privacy settings.  Since every phone is different, check with your local retailer about how to access this information.  Often, the GPS tracking data will show where you visited and when you visited there.  You can offer your cell phone data into evidence in support of your defense of the false claims.

Here are some interesting additional facts about technology and divorce:

  • There are 21 million users worldwide for the site Ashley Madison, which provides discreet connections for married people to engage in affairs.  33 states in the U.S. currently allow some “fault” based grounds for divorce, and access to this site could provide circumstantial evidence to support such a claim.  California is a no-fault state, which means that if you spouse accesses this site it would not be grounds for a divorce (you are simply allowed to divorce without any reason).
  • Family lawyers and divorce investigators often spend a lot of time combing through social media pages.  Be sure to make sure your Facebook, Linked In, Twitter, and other social media pages are “locked tight” meaning that all the information on the site cannot be used against you and that you have not allowed anyone you don’t know to have access.
  • If you are concerned that your spouse is taking your children places they are not supposed to be (like across state lines), given them a cell phone, which has GPS technology.
  • Any information posted by your spouse on any of their social media pages can be used against them in court as a party admission.

Our recent article published in Divorce Magazine can be accessed here.

Our interactive page (a must click) on the issue of divorce and technology can be accessed here.

To contact our office for a free consultation, click here.

Covid 19 Update: We are accepting new cases and we handle everything electronically and remotely, so our clients never have to leave their homes. Click here to learn more.