Three Ways Technology Can Haunt Your Divorce

This is an article provided by the firm of Gillespie, Shields, Durrant & Goldfarb in Phoenix. I’m proud to share it with you.

One woman confessed to murder on Facebook. Another fled to Mexico where she tweeted  “catch me if you can” along with her geolocation. A Hawaii resident uploaded a video of himself  drinking and driving. Of course, these “social media confessions” are blatantly obvious ways to  help out criminal prosecutors; but can social media also damage proceedings in family courts?  Yes. And at an increasingly rapid rate.

Phoenix divorce attorney DeeAn Gillespie of Gillespie, Shields Durrant & Goldfarb says social media and online or electronic  communications are in almost every divorce case and many custody and support hearings.  Why? A couple of decades ago, there was little people could do to  prove someone cheated, had anger management problems, etc. Family courtrooms were made  of “he said, she said” arguments. That is until everyone had a phone, email and Facebook. Now there’s proof — either a positive or negative.

Gillespie’s new rule of thumb for clients: stay off social media and watch not just what you say but also what you write. Dating apps, social media posts and texts can be especially  damaging, she said, citing some cases to backup her claims.

Dating Apps

“Life is Short. Have an Affair.” – Ashley Madison (pre-hack).

Not exactly something a user would want advertised in their divorce hearing, especially in the 33 fault states where “adultery” is a checkable box on legal papers. But after Ashley Madison’s  highly publicized hack and subsequent leak of users last year, scorned women are using their now soon-to-be ex-husband’s profiles as evidence of cheating and sometimes more importantly, as a powerful negotiation tool. And while the openly pro-cheating site gained national headlines, it  wasn’t the first time dating sites danced their way into divorce court rooms.

Since 2013, more than half of divorce attorneys with American Academy of Matrimonial Lawyers (AAML) said they saw an influx of clients using dating websites as evidence. Sixty-four percent of participating attorneys said Match.com was the most common, followed by eHarmony. As for the information most commonly used against spouses, 57 percent of divorce attorneys said relationship status, followed by salary or job descriptions at 15 percent and parental status at 7 percent.

So if you can’t wait for a legally finalized divorce to sign up for dating sites, it’s in your best interest to avoid exaggerations like these real-life examples:

  • In a custody case, a husband was seeking primary custody of his children; his Match.com profile said he was single and childless
  • In a divorce case, a husband said he didn’t cheat; his wife used his Tinder account as opposing evidence

Mobile dating apps like Tinder and Bumble and social apps like SnapChat are, as noted in the last example, also making their debuts in divorce court. While not proving an affair, having a Tinder account could serve as circumstantial evidence a spouse is flirting with the idea. SnapChat, where users send pics to friends that “disappear” after opening, also stores some data. The company recently admitted to complying with 92 percent of U.S. government subpoenas in its first ever transparency report; although what the subpoenas were for was not discussed. So far, SnapChat data has served as evidence in a high-profile murder and child pornography investigation, but no publicized divorce cases. Time will tell if these apps become as damning (or beneficial) as their online counterparts.

Couples divorcing should always keep close tabs on their phones and all its stored or saved content.

Text Messages or Emails

One of the first warnings clients hear from divorce attorneys is to be careful about what they text, email or in any other way write out to their soon-to-be ex. Texts are not too different than emails; they can be saved, printed and used in courtrooms as evidence. In fact, texts are the most common form of technological evidence in divorce cases and attorneys regularly serve subpoenas for emails. Assume every email or text with your spouse or children could appear in court, legally.

This, of course, goes both ways. If you catch your spouse lying, bring it to your attorney’s attention. It could be the game-changer in your case, proven by these examples:

  • In a divorce case, a woman denied having an affair; a computer forensic expert recovered deleted emails and proved she was lying
  • In a custody case, a father denied the mother’s allegations that he was continually disparaging; the mother showed year’s worth of texts where the father belittled her and used foul language and the courts granted her custody.

And it’s not just about thinking before your speak, or type; couples should also be wary of where they leave their phones. If a spouse leaves their phone unlocked in a public place, like their shared kitchen, the other spouse can legally look through the phone and copy the content.

Facebook

The most popular social media site, especially for Generation X, has almost two billion monthly active users. Growing just as rapidly is Facebook’s appearance in family court proceedings; in a 2010 survey by AAML, 66 percent of divorce attorney respondents cited Facebook as the primary source of online evidence used against their spouse. By the end of that same year, the social media powerhouse had 608 million active users.

But how is Facebook relevant to divorce proceedings? Below are some real-life examples:

  • In a custody case, a mother denied gang affiliations; her Facebook account had multiple pictures of her showing off gang tattoos and hanging out with known gang members
  • In a divorce, a husband argues he had a low income and did not cheat on his wife before they separated; the husband’s alleged girlfriend’s Facebook showed a chronological timeline of their affair as well as photos from expensive vacations taken together
  • In a support case, a husband claimed he was unemployed and needed to transition his temporary spousal support to permanent; his Facebook said he was a “business owner” and talked about trips with his girlfriend to Las Vegas, South America and SeaWorld
  • In a custody case, a mother denied she smoked marijuana; she posted photos to Facebook of her smoking.

Facebook can even become a critical player before the divorce proceedings are in motion. In another case, a hired investigator needed to locate a defendant to serve divorce papers. The investigator created a fake Facebook account of an attractive woman, “friended” the defendant, struck up an online conversation and arranged a meetup. When the defendant showed up for the rendezvous, he found not the foxy lady he expected but a process server.

It’s obvious how to avoid Facebook evidence popping up against you in court; don’t post anything incriminating or friend people you don’t know. The real trick, however, is ensuring evidence in your favor is legally obtained.

As evident by the investigator tracking down the defendant, anyone you’ve “friended” has full access to your profile and there is no longer a reasonable right to privacy. If someone hacks into another person’s Facebook account, however, they are violating state and federal laws.

At the end of a divorce, technology may be your friend, enemy or even a frenemy. To ensure it doesn’t end up haunting your divorce, follow these eight social media “rules” to keep your family law matter noncriminal and free of damaging surprises.

8 Social Media Rules While Going Through a Divorce

  1. Review and update privacy/security settings for all social media accounts and computer
  2. Change all passwords to something your spouse can’t guess
  3. Ignore or block friend requests from people you don’t know
  4. Tell your close friends and family to also ignore unusual friend requests
  5. Stop tweeting- especially about anything related to your family or the divorce process
  6. Don’t send Snapchat photos or post photos/videos to your story
  7. Ensure your LinkedIN matches what you tell the judge
  8. Conduct a Google search on yourself to find any forgotten results or images.
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