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How Can Digital Evidence Be Used To Help (Or Hurt) My Divorce Case?

Rick Robertson explores the legal impact of social media and digital communication.

I’m planning on filing for a divorce from my husband. Should I close down or delete my social media accounts?

I would not advise you to actually delete your social media accounts, although it’s not uncommon to simply deactivate them. Deleting the info could lead to a situation called “spoliation” (deliberate destruction) of evidence. This would leave room for a judge to infer that you have deleted relevant social media posts from your account, thereby assuming that the deleted evidence was damaging to your case. It’s always best to go over these things with your divorce lawyer before acting.

I think my husband has been planning to divorce me for some time and is having an affair. He’s pretty sneaky and I’m sure he has deleted all of the texts and emails between him and his girlfriend. Is there any way to recover this evidence?

Possibly. Divorce attorneys work with forensic IT specialists quite often to recover this deleted information. We have been successful in recovering texts and emails that were once thought to have been deleted or hidden behind privacy settings, but in fact, were not.

I think my wife is having an affair. I’ve read about software that I could install on her work computer in order to get the passwords to her email. Should I do this to confirm the affair before I seek a divorce?

How many accounts, who owns the account, is it “local” to the device or “in the cloud,” etc., will have no bearing on the court when it comes to retrieving evidence…

No. There could be criminal and/or civil ramifications if you do such a thing. With all the intricacies in the law, you will want to consult with a divorce attorney for legal advice before taking part in any “Do-It-Yourself” investigation techniques such as this.

My husband and I share an iTunes account. One of my friends told me that he could see my text messages through the cloud. Is this true? Could it be used against me in a divorce?

This is indeed true in some cases. While I’ll spare the details on how this works with particular platforms and types of cloud-based accounts, just know that all texts, pictures and video pulled from one of these shared accounts can be used against you in court.

That being said, when it comes to digital evidence, whether or not you share an account with your spouse is irrelevant: I’ve seen judges allow complete data dumps from both parties’ phones during the divorce process, allowing all forms of data to be seen. How many social media accounts, who owns the account, is it “local” to the device or “in the cloud,” etc., will have no bearing on the court when it comes to retrieving evidence it deems pertinent to the case. And when that certain damaging picture, text message, video, or other social media evidence is blown up and shown on a big screen in the courtroom, it will probably affect a jury’s decision.

My wife and I have started the divorce process, what should I avoid putting on Facebook, Twitter, Instagram, LinkedIn or other social media profiles?

A good question, and certainly relevant: a survey by the American Association of Matrimony Lawyers (AAML) showed that between 2005 and 2010, divorce attorneys saw an 81% increase in the use of social media sites as evidence in the courtroom for divorce cases. This certainly coincides with my experience, but today, the breadth and expansion of social media sites (Twitter, Instagram, etc.) has dramatically expanded the amount and type of evidence used since that 2010 survey was done.

Facebook and social media usage is more about an overall mindset and behavior during a divorce. I advise my clients, before they post a picture or comment on Facebook, to ask themselves this question: “When the judge sees this during my divorce proceedings, what will he/she think?” This may sound extreme, but it’s true even outside of a divorce case. When you put something on social media accounts, you’re putting it out there for all to see….and sometimes judge.

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Rick Robertson, President of KoonsFuller Family Law, is a constant selection by his peers to the most prestigious divorce attorney lists, including Super Lawyer’s Top 100 Attorneys in Texas, D Best, and Best Lawyers. Known as one of the “go-to” divorce attorneys when it comes to digital evidence and the use of technology in the courtroom, Robertson has received the prestigious TexasBarCLE Standing Ovation Award for his role in teaching these techniques to attorneys across the state. Robertson is Board Certified in Family Law by the Texas Board of Legal Specialization.

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