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A Digital Footprint Can Be a Treasure Trove for Divorce Attorneys

Let’s face it, texting, social media, email and other forms of electronic communication play an important part in most people’s lives.  They also leave a digital “footprint” of a person’s activities that can either help or harm a man’s case in court. 

An October 31, 2016 article in the New York Times, In a Divorce, Who Gets Custody of Electronic Data? The Lawyers, by Jonah Engel Bromwich and Daniel Victor uses the example of the recent Anthony Weiner/Huma Abedin scandal to set up a discussion of the role of electronic communication in divorce matters.  The article points out the extent to which a person’s digital history can leave a more a less permanent trail of evidence of embarrassing, dangerous, or otherwise bad behavior.  Even the most sophisticated party can leave a record of digital “activities” that are discoverable by his spouse, her lawyer, or her lawyer’s expert.  In a sense, it is no different than leaving your dirty laundry on the kitchen table to be discovered. 

Much has been written on our website and elsewhere on the role that a party’s misconduct, or “fault,” can play in many issues in a divorce.  Misconduct which a judge concludes leads to the breakdown of the marriage could result in the perpetrator receiving less than an equal share of the marital estate or less spousal support than otherwise may have been ordered.  Bad behavior seen as dangerous or setting a bad moral example for children can factor against a parent seeking custody.  Parties also use online accounts to hide assets or debts which can come to light.  As a result, experienced family law professionals routinely delve into the opposing party’s online history and social media profiles for relevant evidence. 

Your initial consultation with a divorce lawyer is an important time to discuss steps to take to discover your spouse’s digital activity and to avoid leaving a digital trail yourself that may hurt your case.  There is an evolving area of privacy law that should be discussed with your attorney on what one can and cannot do to access what your wife believes to be a “private” form of communication.  It is important not to run afoul of federal, state or local criminal statutes against wiretapping, eavesdropping or hacking into your spouse’s digital communications.  That said, much of this communication is already “out there” to be used in litigation, including pages left open on a shared computer or tablet, “find my IPhone” type locater functions, and texts which a spouse might forget will get sent to a shared device as well as her phone.

Your divorce lawyer will want to request a temporary restraining order from the court with the initial divorce filing that prohibits a party from deleting or destroying electronic evidence.  If there a possibility of discovering particularly relevant information, an immediate subpoena to allow an expert to examine her computer or devices should be considered.  Although they are becoming more difficult to obtain, a subpoena to the cell phone provider should be considered to see if text messages or, at a minimum, a history to phone numbers used for texting can be produced which may show a pattern of a relationship.   Texts have become so common place that they create a virtual transcript of conversations to be admitted in court.

On the flip side, think carefully about your own digital communications and activities.  While it is improper to destroy potential evidence after a case is filed, common sense would dictate that you consider changing passwords and thinking about who has access to your emails or texts.  Make sure the email address you provide your lawyer is secure from your wife, relatives and even your employer.  Never, EVER, forget that your texts can and will be used against you a court of law. The bottom line, whether facing possible divorce litigation or not, is think before you text, tweet, email, Facebook, Spotify, Instagram or whatever.  Big Brother may be watching.

About ADAM (American Divorce Association for Men)

The American Divorce Association for Men (ADAM) is a group of highly qualified attorneys who advocate for men’s rights in divorce, child custody and parenting time, paternity, support, property settlement, post judgment modifications, and other family law matters. Since 1988, ADAM has been aggressive, diligent, and uncompromising when representing their clients. A team of compassionate and skilled family law attorneys, ADAM is dedicated to being Michigan’s leading divorce lawyers for men.

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