Spying on Your Spouse’s Computer? What Digital Evidence Means for the Future of Divorce

Aaron Dishon asked:
Like many other things in our lives, technology has changed the face of divorce forever. Whether text messages, cell phone records or email messages, digital evidence has increasingly become part of nearly every contentious divorce case and/or custody issue. With people relying more and more on digital communication and paperless transmissions, the computer has become an even more integral part of daily life.

A recent poll conducted by the American Academy of Matrimonial Lawyers found that 88 percent of its members surveyed had seen a “dramatic increase” in such evidence. Statistics from many electronic discovery and computer forensics firms indicate that more than a third of electronic discovery cases are divorce-related. In divorce, digital evidence can be the most damning in terms of financial deceit/disclosure and/or ex-marital affairs. The evidence can be devastating.

Employing a private investigator isn’t the only way to gather evidence in divorce or child custody proceedings anymore. Valid and dependable methods to recover data from computers as part of discovery in divorce proceedings are becoming essential for divorce lawyers. This is particularly true in cases with larger estates, complicated business or real estate holdings or multi-jurisdictional assets. Snooping through files, staking out hotel rooms and snapping photos have been replaced with forensic hard drive examinations, key logging and sophisticated software tracking programs which often provide more concrete and excuse-proof evidence. And, there’s more. There are newer technologies also being used to collect evidence against spouses. Cell phone records are almost always admissible in divorce court, E-Z pass toll records have been subpoenaed to catch cheaters in lies and GPS devices have been sneakily applied to vehicles by suspicious spouses in order to track one’s whereabouts.

IN light of this new time of evidence, it’s critical to hire an attorney and computer forensic expert capable of finding critical information and effectively presenting it in court.

A forensic analysis can serve as a valuable tool in high conflict california divorce cases where there is suspicion of wealth transfers or prove infidelity. Information that can be obtained can include:

e-mail and instant messages

user names and passwords;

names and addresses of financial institutions

asset and/or fund transfers;

debt information and account activity

Recovering deleted, encrypted, or damaged file information.

What many people don’t realize is that deleted information is never truly deleted. Re-formatting the hard drive of a computer does not erase stored data; it usually just erases the links that point to where the data can be located. And the harsh reality is that in many instances, the most important evidence is proof that there was the attempt to destroy data. The consequences of discovering undisclosed assets or other relevant information in divorce can be profound. The party that fails to disclose the asset during the divorce process may be required to pay attorney’s fees turn over the asset to the other party or to the court in a receivership proceeding in addition to calling into question that party’s credibility in the proceedings. Actively pursing this avenue of investigation may be the difference between losing out on significant assets or uncovering a plethora of financial information including investments and real estate holdings even if they are held in the name of another person or sheltered as part of a holding company.

For example, in one particular divorce proceeding that I handled, discovery was served to acquire financial records and emails related to one spouse’s income derived from his business. It was later discovered through emails from this spouse to his business partners, that he was funneling significant funds from the business to three different people as well as a dummy corporation in order to get around reporting the income.

In another case, discovery was used to prove infidelity. This is becoming a more common practice in highly contentious custody proceedings because this evidence can be used to prove one spouse’s priorities are with this “personal relationship” rather than with their children. Another use for electronic discovery in custody issues is using a computer’s search history to prove discrepancies in one spouse’s lifestyle including such behaviors as gambling and pornography.

The digital path left by cheating or financially deceitful spouses provide evidence so powerful, it can’t be denied. The law is struggling to keep up with new technology. The divorce laws in many states are evolving to accommodate the increase of evidence extracted from computer hard drives, but the legal bounds are arguably still unclear. Family court judges are faced with tough decisions about the legality of such evidence and in the absence of established laws in certain states addressing digital evidence; they are forced to make difficult judgment calls about what constitutes a violation of privacy.

Divorce is very common in today’s legal landscape and electronic discovery continues to play a critical role. High stakes battles over marriage settlements and child custody arrangements make each attorney’s strategy the key to an optimum outcome.

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