Parties to a divorce and divorce attorneys must familiarize themselves with all aspects of emerging technologies. There is nothing worse than litigating a case in court and observing evidence presented by the opposing side that is detrimental to your case. Technology allows for more and more avenues to gather information and evidence for use in court. By keeping apprised of new technologies and the ways in which those technologies can be introduced as evidence in a divorce or separation case, you will gain a significant advantage.
The World Wide Web is home to 3.32 billion pages across the globe. There are also millions of smartphone applications. Because creating a website or mobile application is so easy, new sites and applications (apps) are created every day that impact the family core and therefore divorce rates. The content within these websites and apps are cited in divorce proceedings as evidence of the breakdown of the parties’ marital relationship, evidence of income or the activities or whereabouts of a party or child.
Aside from Facebook, discussed below, two specific newer applications have caused havoc among matrimonial relationships. They are Tinder and Ashley Madison.
Tinder is a mobile matchmaking application that uses GPS technology and Facebook to locate nearby potential “matches”, which many users of the application utilize to engage in sexual activities.
Ashley Madison is a website that promotes extramarital affairs. There are 37 million users of this website worldwide.
The mere access to sites and applications like these may be grounds for divorce in some states and countries. For example, a judge in Aix-en-Provence, France, recently ruled that flirting on online dating sites constitutes grounds for divorce, regardless of whether or not the spouse had any “physical contact” with any online suitors.
For example, in Massachusetts, the General Laws at Chapter 208, Section 1, provides for the various grounds for divorce based on one party’s fault. One of the enumerated bases is “adultery”, which means that a spouse has a sexual relationship with another person that is not the other spouse during the marriage. Because the actual act of adultery is difficult to prove, circumstantial evidence is sufficient and often used to prove adultery. As a result, simply visiting websites like Tinder and Ashley Madison may be part of the circumstantial evidence used to establish adultery.
One of the most prominent methods to gather information for use in divorce cases comes from social media websites. Social media outlets allow divorce litigants to gather information about the opposing party and other people that may be connected to their case, such as information about a boyfriend or girlfriend of a party.
In one case, a mother denied that she had gang affiliations in her divorce custody matter. Her Facebook account revealed ten or more pictures of the mother hanging out with certain gang members with clearly visible gang tattoos. The mother also posted a picture of her child on Facebook after she had given the child a temporary tattoo that had possible gang meaning.
In another case, a husband alleged that he had a very low income and that he did not have a girlfriend near the time of the parties’ separation. Husband’s Facebook page told another story. Husband’s girlfriend’s photo albums on her Facebook page showed a chronological history of her relationship with the husband prior to the parties’ separation, including pictures from several lavish vacations.
The question of whether it is legal to access another person’s Facebook page often arises in divorce cases. The answer depends on whether the person attempting to access another person’s Facebook account does so using the other person’s password or through his or her own account. If a person accesses another’s Facebook account without permission, they have committed a crime in every state. They have also committed a federal crime under Section 2701 of the Stored Communications Act, which provides criminal penalties for anyone who "intentionally accesses without authorization a facility through which an electronic communication service is provided or… intentionally exceeds an authorization to access that facility; and thereby obtains, alters, or prevents authorized access to a wire or electronic communication while it is in electronic storage in such system shall be punished…”
However, anybody is entitled to access another’s Facebook page with permission by “friending” them. There is no reasonable right of privacy to a person that invites the other person to view their information. As a result, divorcing parties and their agents often go through great lengths to gain access to another person’s Facebook page. One way they do this is by creating phony Facebook user accounts to entice a friendship online.
Facebook acknowledged in a recent federal Securities & Exchange Commission (SEC) filing that over 83 million Facebook accounts are duplicate or false accounts. Divorcing parties should beware of any unknown friend requests during their divorce matter.
The investigator created a fake account with a picture of an attractive woman to entice a man to “friend” this fake woman on Facebook. The investigator was able to track the man and served him with divorce paperwork after arranging for a meeting between the man and the fake woman.
Nearly every seasoned divorce attorney will tell their client during their first meeting to be careful what they type in a text or email message. Text messages often find their way into court battles, particularly over child custody and visitation issues.
It should always be assumed that the content of a text message will be printed and shown to the family law judge. Usually, anything a party writes in a text message can be used in court as a party “admission.”
As a result, there are several key details to remember about text message communications as they relate to divorce matters. First, every divorce litigant should save and backup their text messages. We have come across many circumstances where one party obtains the cell phone of the other party and deletes information on the phone, including texts.
Second, beware that text messages may be used to “impeach” the testimony of a party. In one child custody case, a mother claimed the father continually disparaged her over text messages and in the presence of the child. In court affidavit documents filed before a court hearing, the father denied the mother’s claims and stated he had never disparaged the mother or used foul language to belittle her. At court, the mother introduced into evidence over two years’ worth of text messages between her and the father that she had saved and printed out. In hundreds of text messages the father called the mother every crude name imaginable and used grotesque and foul language. The court did not find him credible and entered custody orders at the mother’s request.
Divorce attorneys often attempt to subpoena the text communications of the other party. Unless they have dealt with subpoenaing such messages previously, most will find out they will waste valuable time and energy trying to obtain messages that are not kept for very long by the service provider. By the time a subpoena reaches the service provider, the text messages sought have long since been purged. The content of text messages are generally not retained by the service provider for more than a couple days.
Information that a text message was sent or received on a certain date and time can be obtained by subpoena, however.
Of course, when a party attempts to send a subpoena to a cell phone service provider they should expect opposition from the opposing side and resistance from the service provider. First, an opposing party will assert his or her constitutional right to privacy as text messages sent to various persons would largely be irrelevant to the divorce case. Obtaining a copy of all text messages will arguably violate a person’s reasonable right of privacy. Second, a cell phone service provider may invoke its own challenges to a civil subpoena. As mentioned, text message content is typically purged quickly and therefore the provider is usually unable to provide text content even if it wanted to. A letter from the attorney with the subpoena stating that the messages must be preserved is a good method to try and stop the provider from permanently deleting the message content.
Finally, divorce attorneys are always cognizant that the best method to obtain information relating to the opposing party’s text messages is usually by seeking them directly from the party. In some cases, experts may be able to extract text message data by examining the phone itself.
Email communications may have significant impact on a divorce case. An email communication may relate to the existence of assets, the occurrence of an affair, or demonstate income. In one case, a rich housewife deleted all emails and files from a three year period before her claimed separation date from the husband because she was having an affair. She denied the affair and said no evidence existed about the affair. A computer forensic expert was able to recover many of the deleted emails and contradicted the wife’s claims about her affair.
Divorce attorneys routinely serve subpoenas in an effort to obtain email communications. There are two key ways to obtain email communications. By far the best method is to obtain the email messages from the party with control of the computer device. This can be accomplished by serving a demand to inspect the computer’s hard drive, wherein it can then be copied. Data can then be extracted from the hard drive, which may include deleted email correspondence. In situations where email communications are stored in the internet “cloud”, such as Yahoo, Gmail, and other similar email providers, divorce attorneys may serve a subpoena on the email service provider but the Stored Communications Act will apply, as discussed above, and should be handled accordingly.
A party’s computer hard drive is generally “fair game” in divorce cases. If a computer is jointly owned by the parties then each party has an equal right to possess, use and access the computer. In any circumstance, either party may serve a demand to inspect and copy the computer hard drive that is in the possession of the other party.
Even deleted information on a computer’s hard drive can be obtained by forensic analysis. Obtaining information from a hard drive for use in a divorce case must be obtained properly; otherwise the data extracted will not be admissible evidence in court. Make sure the computer drive is analyzed by an expert. The expert must have credentials to perform the forensic analysis and follow the proper extraction procedures to ensure the information is preserved and unchanged.
Then the expert has to testify in court that they obtained the hard drive, analyzed it using approved methods and extracted the data, establish where the hard drive has kept, verify that the data was unchanged for presentation to the court, and then they will be able to share the results of the analysis in court. In divorce cases, attorneys must designate their forensic expert to the other party before trial if such an expert is going to be used. Divorce lawyers must make sure to follow the rules set forth in the civil procedure rules of their state or else tens of thousands of dollars will be wasted in paying “experts” who will not produce admissible evidence for use in court.
One of the more difficult issues divorce attorneys face in trying to supply the court with evidence of electronic communications, is authenticating the communications. This means that the attorney must show the court, before the court will accept the communication into evidence, that the communication was actually sent by someone to someone else on the actual date and time indicated on the purported email, text or other electronic communication.
Seasoned divorce attorneys realize the importance of authentication and must have a plan for obtaining “admissible” and authenticated correspondence from the outset of the case.
Further, most written communications are hearsay, which means they are not admissible in court even if the communication was made by a party, unless an exclusion or exception applies. There are a significant number of exclusions and exceptions to the hearsay rule, and divorce attorneys must be knowledgeable of these rules.
While text messages and email communications provide significant benefits, particularly ease of use and accessibility, there are other communications methods available to divorcing parties to communicate with each other while a case is pending. As an example, many family law courts refer parties to Our Family Wizard to handle all non-emergency communications concerning child custody and visitation. Programs such as Our Family Wizard provide parties with a visitation calendar, appointment chart, and internal “email” communication to allow the parties to send messages to one another.
There are two significant benefits to programs like Our Family Wizard. First, the parties’ account can be accessed by the family law judge assigned to the case who will then have access to all the communications between the parties at the click of a button. Second, the program allows for a check on the email tone before it is sent. For example, a parent may want to send the other parent the message, “Hey, come and pick up your daughter.” The program will alert the sender to alternative phrases that might provide a more appropriate tone, such as “Please let me know when you are going to pick up Catie today.”
Every new smartphone contains GPS technology. One in five people in the world use a smartphone, meaning there are approximately 1.4 billion smartphones in use worldwide. Many family law parties are shocked to find out that GPS technology track where they have physically been over the course of days, weeks and months. Using the iPhone as an example, unless modified in settings, the device will track where the phone goes and store the information automatically.
Similar to the procedure described about for extracting data from a computer hard drive, a demand for production of a cellular phone can be issued by either party in the divorce case. The data can be removed from the phone and used in court if the proper procedures are followed.
In some rare circumstances, a party may want to track their own whereabouts using a GPS monitoring service during a divorce case. In situations involving domestic violence and abuse, where one party is falsely accusing the other party of stalking, the accused party might hire a monitoring service to track their whereabouts over a particular period of time, similar to those devices used in criminal matters for house arrest. The expert that conducts the monitoring will then appear in court and testify as to the actual whereabouts of the accused party over a certain period of time to contradict the false allegations.
Additionally, transportation services such as Lyft and Uber track the movements of a person that uses their service. Although it would be rarely used in a divorce case, if a party’s movements and whereabouts were an issue in the case, the opposing divorce attorney may seek to obtain the records of the party’s whereabouts, which may be derived by analyzing the party’s use of such transportation services.
Divorcing parties and attorneys should be wary of attempting to track another person in a divorce case. As of January 2012, the United States Supreme Court, in a criminal search and seizure case, held that the use of a GPS monitoring device without a valid warrant constituted a search under the 4th Amendment. In the context of a civil case, it is unlikely GPS monitoring information of the other party without their knowledge or consent would be admissible. This is particularly the case because secret recordings for use in a court proceeding constitute a criminal act and cannot be used in the proceeding absent a valid exception.
By David K. Wilkinson, Esq. Mr. Wilkinson practices family law exclusively as a founding partner of the law firm Wilkinson & Finkbeiner, LLP. He has been designated as an expert in family law by the State Bar of California as a Certified Family Law Specialist. Mr. Wilkinson is licensed to practice in California and Massachusetts.
* Nothing in this article constitutes legal advice. If you need legal advice, you should contact a licensed attorney immediately.
M.G.L.A. c. 208, §1; http://www.massdivorceattorney.net/divorce/
- this site contains a comprehensive list of links to each state’s laws regarding hacking
E.g., Federal Rule of Evidence 801
E.g., O’Grady v. Superior Court; Flagg, (2006) 139 Cal. App. 4th 1423; 44 Cal. Rptr. 3d 72.
iPhone Settings > Privacy > Location Services > System Services > Frequent Locations
E.g. Cal. Penal Code § 632