Social Media, Email, Apps Increasingly Used as Evidence in Divorce

We have discussed before some of the dangers of using social media when contemplating or going through a divorce.  A recent survey of the American Academy of Matrimonial Lawyers indicates that more and more lawyers are using texts and emails as evidence in divorce.

An astounding 97% of responding attorneys reported an increase in the use of evidence from smartphones and other mobile devices in the last three years, with texts accounting for 46% of evidence gathered, followed closely by email at 30%.  The top apps used?  Find My iPhone and Snapchat.

What do these results tell us?

Technology has outpaced our ability to keep certain indiscretions, and even just random thoughts, completely private and turned them into easy-to-use and forever-saved documents or videos.  Who needs a private investigator when our cellphones function as GPS trackers or a spouse tells too much to friends on Facebook?

Much of this material serves as “gotcha” evidence, but before it can be used it must be authenticated, and this remains a challenging area of the law.  One spouse may try to introduce an alleged email or text as that of the other spouse – but how can that be done?  If one spouse receives the email or text, that spouse can store it in the phone or computer and it will have a chain of custody to it.  But how does one show that a spouse actually made a post to Facebook?  Is it legal to track a spouse’s cellphone and could it be admitted in court?  Some of these questions do not have readily available answers as the law continues to develop, trying to balance privacy with a search for truth.

The surge in use of this type of social media evidence should serve as a giant caution to anyone considering a divorce or going through a divorce – what you do on your phone or laptop could become incriminating exhibits in your case.

If you have questions about social media and divorce, contact us – we can help.