In our previous post, we discussed the impact of Anthony Weiner’s potentially criminal conduct on his pending divorce with Huma Abedin. In this post, we explore the admissibility of various electronic information in the divorce.
As many of us know, Anthony Weiner spent a great deal of time online, through texts and other platforms, sending a variety of words and images to others. As it happens, most of these communications were saved on at least one of his laptop computers, and perhaps in cloud storage as well. Can this information be obtained by Huma and used in the divorce? Most likely, yes. All of the communications are evidence of marital misconduct and were probably communicated using marital property. It would seem Huma should have the ability to subpoena all of these communications and introduce them as evidence in the case, as they have relevance.
How much access can Huma get to her estranged husband’s computer? She can certainly ask for specific materials dealing with specific types of conduct, but she may not be able to have access to all of his emails and other activities because of his right of privacy. However, if he and Huma jointly owned or had access to the same email accounts, or the computer happened to be jointly owned and accessed by both parties, an argument could be made that anything on the machine is hers as much as his, subject perhaps only to communications with his attorney (and that may even be waived depending on the circumstances).
What impact would these materials have on the divorce? They bear on two aspects at issue – property and custody. With regard to property, a court may give an unequal distribution of marital property if one party has committed marital misconduct. With regard to custody, the lack of judgment with regard to the presence of the child could make joint physical custody unlikely and result in a variety of restrictions on the length and scope of physical custody, including supervised visitation.
Overall, the Abedin-Wiener divorce illustrates all the pitfalls of social media and email in one single case. If married couples can take any lesson from this, it would be to minimize social media presence; maintain a separate account your spouse cannot access; and never write or post anything you do not want to see used against you in court.
If you have questions about marital misconduct and divorce, contact us – we can help.