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In Divorce, Privacy is Sometimes Just an Illusion

It’s easier than ever to catch or try to catch your spouse cheating.
By now, most everyone knows that hitting ‘delete’ on an email doesn’t mean it is permanently erased. What you may not know is that deleting a text, photo, or video on your cell phone doesn’t mean it is gone for good, either.

With the advent of the iCloud and other similar wireless storage, your “private” data may not be as hidden as you think. “You may assume that by saving your ‘private’ photos, videos, and documents to your individual phone that they will remain unseen by others, but if your phone is connected to the iCloud, it could be found,” cautions Robert Epstein, a partner at the family law firm of McClure Law Group.

mcclure-divorce-privacy-phoneWhatever the device that contains the data, if it gets saved to the Cloud, any other connected devices will have it, too. But, wait. Isn’t looking at someone else’s private information, whether it’s saved on wireless storage or not, considered an unlawful invasion of privacy? Not exactly. If your spouse views the data through a device in which he or she has permitted access to use the Cloud, which is often the case with a shared wireless data plan, it will not matter what device the data was initially saved on as it is legally shareable information. People need to be mindful of the fact that this includes internet web browsing history as well.

Just a few years ago, it would take finding a revealing text or email or having a private investigator follow your spouse to prove infidelity. Today, it could be as easy as seeing something suspicious on Facebook or discovering an online romance on a dating site. Mobile apps such as Kik Messenger, allow users to anonymously transmit and receive messages including videos and photos without ever entering a phone number. In Kik Messenger, users are able to misrepresent their age and identity since registering information is not verified. However, tracking apps and devices for smart phones, computers, and even cars are just some of the ways married couples are discovering a spouse’s infidelity today.

“Spying and cheating are hot topics in family law, and with so much information readily available on our smart phones, it’s easier than ever to catch or try to catch your spouse cheating,” says Kelly McClure, Managing Partner and CEO of McClure Law Group.

If you’re already in the midst of a divorce, put down the phone.

Today’s family lawyers almost have a full-time job keeping up with all the various spy apps that are created seemingly by the minute. Apps, such as Find my iPhone, will simply show the location of someone else’s device. Others are more involved, like mCouple, an app that both partners install on their mobile devices. Once installed, the app allows each partner to track the other’s GPS location, phone contacts, text message history, call log, and Facebook chats. Some apps, like mSpy, have “geo-fencing” features. This type of app can notify you if a device crosses a boundary into an allowed or forbidden zone. If you think your spouse is deleting his or her records to hide their activities, Dr. Fone is an app that allows you to recover an enormous range of deleted data.

mcclure-law-native-phone-divorceBut before you spend the day installing new spy apps on all your family’s devices, consider the legal implications. “I warn my clients about using these apps because if your spouse has a reasonable expectation of privacy in the device, and he or she does not consent to these apps, you could run afoul of federal anti-wiretapping laws,” McClure says. “Be sure to contact an experienced lawyer if you are not sure about the legal aspects of tracking your spouse with these types of apps.”

If you’re already in the midst of a divorce, put down the phone. It’s too late to delete information, as social media accounts and cell phone data are now regularly requested as electronic evidence in the discovery process of divorce and if not, parties are often times ordered not to delete such material. Failure to provide this information upon request can result in stiff penalties and in some cases, contempt of court. Remember, privacy settings are one thing; destruction of evidence is another. Says Epstein, “Remain cognizant of the devices that have access to your Cloud information and be careful who you share your Cloud information with, because if you do, you may not have any ‘private’ data. Of course, if you are not currently involved in litigation, social media profiles can be edited in whatever manner you wish. However, if you are involved in litigation, talk to a lawyer before you hit delete. And remember, deleted data is rarely gone forever, so don’t post what you do not want the world—or a judge—to see.”


This post was created by D Partners Studio on behalf of McClure Law Group. Kelly McClure is a collaborative law leader and Board Certified in Family Law by the Texas Board of Legal Specialization.  She is the principal and CEO of McClure Law Group and leads her law firm with more than 25 years of mediation and trial experience. Robert Epstein is a partner at McClure Law Group who is also Board Certified in Family Law by the Texas Board of Legal Specialization.  McClure Law Group provides clients with extraordinary expertise in every method of resolution for their family law concerns. Visit to learn more about how to protect yourself and your fortune during divorce.

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