Divorce litigation can be extremely complex and scary, especially to the unfamiliar. Technology can also be complex and scary to many people. Because technology is becoming more prevalent in divorce cases, there is reason to be scared and nervous these days. This article should help ease the concern that certain technologies may be used against you in divorce because you will now be aware and anticipate potential problems.
Smartphones and Apps: Smart phones and their applications have caused divorce, or have at least been a significant contributing factor for the cause of divorce in alarming rates. With over 3 billion web pages and millions of Smartphone applications in the world it is no surprise that certain websites will spark marital discord, such as easily accessible pornography and matchmaking sites. One site, Ashley Madison, offers a discreet method for married couples to have affairs with other married persons. There are over 21 million users of Ashley Madison worldwide, and the mere access of sites like these may be grounds for divorce in any of the 33 states that offer fault-based divorce.
Facebook, Twitter and Other Social Media Sites: Divorce litigants may be surprised to learn that divorce attorneys troll social media pages looking for information to use against the other party in divorce cases. They also use Facebook to make connections with defendants in order to search them with the divorce summons (in one recent case in New York, the trial court permitted service by a Facebook message). Anything posted by a party will likely be admissible in court as a “party admission,” which is an exclusion of the hearsay rule.
Technology & Evidence: Evidence is information that is accepted by the divorce court judge in a case that may be used to sway the court’s decision. Often, unknowing family law litigants have limited knowledge of what information is permitted and how to object to evidence. For example, if your spouse brings to court one of your friend’s Facebook pages and starts talking about it, showing pictures of you from that friend’s page, and so on, object! Unless the friend is there to testify that the page is theirs and they posted all the information on the page, your spouse’s attempt to show this information to the judge should not be permitted because there is a “lack of foundation” (your spouse can’t testify to someone else’s information or statements) and the information included on the page is hearsay.
Subpoenas Sent to Telecommunications and Social Media Sites: Federal law provides ample protection to telecommunications and social media websites and you and your family law attorney should not have high expectations that any useful information could be obtained by sending a subpoena to any phone company or Facebook, Twitter, LinkedIn or other similar site. The Stored Communications Act (codified at 18 U.S.C. Chapter 121 §§ 2701-2712) allows social media sites to refuse to provide information to anyone except law enforcement (under certain circumstances) without the users written consent. The content of text messages are purged by phone companies usually within 3 days and only the recording of the sent text messages are kept. The best way to get this information is directly from the other party through discovery.
GPS Tracking: Many divorce litigants will be shocked to learn that their Smartphone tracks and records movements and whereabouts for long periods of time. For example, the Apple iPhone tracks your movements for weeks in Location Services settings. When might this be important? Suppose that your spouse files a domestic violence restraining order against you alleging that you were at a specific place at a specific time. Check your phone as it may have a record showing you were someplace else at the alleged date and time. This application may also be useful to track the whereabouts of children, which provides of multitude of benefits (or drawbacks as the case may be) in child custody and visitation disputes. For example, suppose your spouse has taken your children across state lines in violation of an order prohibiting taking children out of state without a court order – the location GPS information in your spouse’s phone, or in the children’s phones, may provide evidence to support a contempt charge or other motion against your spouse.
Simple Mantras to Always Follow
These 8 simple “technology smart” mantras will help you avoid pitfalls in divorce court:
Review privacy and security settings on all cloud accounts and social media sites
Change passwords to all accounts
Never allow anyone to become friends on Facebook that you don’t know
Advise your family and friends to beware of anyone they don’t know trying to become friends with them on Facebook (which would allow the person to gain information about you)
Don’t use Twitter during a divorce case
Don’t send any Snapchat or Instagram photos during divorce proceedings
Make sure your LinkedIn profile is accurate; and
Google search every variation of your name that you can think of, including a search for relevant images.
This article has been excerpted from a wonderful interactive page constructed for the Wilkinson & Finkbeiner, LLP family law office in Irvine, California. The page can be found here.