June 28, 2018

With today’s technology, what we do today can echo into the future — and leave enough evidence to be used during court proceedings. The technology used by couples heading towards divorce may lead to remarkable discoveries that can dramatically tip the balance in favor of one spouse or the other.

With so much evidence available in the form of e-mails, instant messages, social media profiles, electronic financial records, and more, it is not surprising that embittered partners are using all available means to gather the “dirt” on their spouses.

In the past, there may have been a paper trail that uncovered hidden assets (for example, a second set of books) or secret extramarital affairs (for example, love letters and photos). But today, similar evidence may be found online or on a computer hard drive.

Is it legal to snoop? Laws involving the Internet and electronic discovery are evolving. Whether data gathered by a spouse is admissible in court may be a matter of state law. In some cases, federal law may be violated, if for example, a spouse hacks into an e-mail account. Evidence obtained illegally can generally not be admitted in court.

Both parties to a divorce should be aware of the following sources of data:

E-mail communication. While e-mail has helped executives run multinational organizations with relative ease, it has also triggered the downfall of many in the “C-Suite” when evidence of civil or criminal violations was resurrected from e-mail messages that were deleted long ago. As much as we would like to think so, once a message is deleted in an e-mail account, it is not always deleted from the computer’s hard drive.

A suitably experienced forensic technology expert can uncover remnants of data to reconstitute critical e-mail messages along with an Internet user’s browsing history. The forensic expert can also provide clues as to what types of data were deleted by a user. By itself, knowing that certain e-mails and associated files were deleted may not be critical, but it may indicate a pattern of activity that supports the allegations claimed by the other spouse. It may also result in new investigative leads to be pursued.

Facebook and other social media websites. A LinkedIn profile can expose hidden assets from a business interest one spouse didn’t know about. A spouse can find an old high school flame on Facebook or begin a relationship with a stranger. In many cases, sharing too much information, or sharing it with the wrong “friend” can lead to the end of a marriage. To complicate matters further, Facebook’s privacy settings are notoriously cumbersome and often applied incorrectly. The picture of a cheating spouse at an intimate candlelit dinner for two captures a moment that when “tagged” can expose an affair to the other spouse.

Be careful what you share with “friends” because you never know who is watching and how brief exchanges can be misconstrued.

Electronic spyware. Almost since the beginnings of the Internet, criminals have used electronic spyware to capture personal information and login credentials for financial accounts in order to commit fraud. Many commercially available “keyloggers” can do much more than capture the keys entered. They can capture instant chats, user names and passwords, programs accessed, and websites visited. An enterprising spouse might install a sophisticated keylogger and then sit back and wait for the incriminating data to roll in.

Cameras. You’ve no doubt heard about “nanny cams,” which have helped uncover criminal acts by caregivers entrusted with young children. However, these cameras are used for many other purposes. A number of retail stores offer “peephole” cameras that can be easily concealed in regular household items such as clocks, books and picture frames. The quality of the recording is remarkable, and if monitored by a live operator, the cameras can zoom and pan around the room as well as redirect their microphone to increase the sound quality. Depending on where a camera is placed, it can also be used to record a computer screen as well as the keys entered to access bank accounts, social media profiles and email.

In addition to cameras that are purchased and covertly placed, many laptops as well as desktop computers have built-in cameras. With minimal effort, it is possible to remotely activate a computer’s camera and record activity taking place in front of the computer as well as provide a wide view of activity taking place behind the user. This tactic could prove useful if one spouse is traveling out of town for personal or professional reasons.

GPS devices – Whether or not it is legal to place a GPS tracker on your spouse’s car is subject to legal analysis. However, what if a GPS device is placed on a spouse’s car and his or her partner drives that vehicle occasionally? Regardless of how this issue would be decided in a court of law, most navigation systems in today’s cars track previous destinations. In addition, most new cars log each trip in terms of miles, average speed and fuel consumption. Such information can help a spouse trying to prove that the other spouse is running an undeclared business, or visiting a paramour.

Smartphones – Most people are rarely without their phones and they use them for texting, banking, etc. Like other electronic devices, evidence of secrets one spouse is keeping from another can be found in a phone.

As the Internet has seeped further in to the fabric of our lives, routine tasks that once were entirely paper based have migrated online. Hidden assets or a romantic affair can be uncovered with the help of online access to phone bills, bank statements, and frequent flyer records. In fact, many consumers have elected to cancel paper statements in favor of electronic statements that are either emailed to them directly, or housed on a company’s website.

In addition, many records that previously could only be accessed at a local or state government office are now online including business registration and property tax records. Some states even allow for searches of state registered companies using the name of a company, officers or registered agents. Numerous third party databases that can be used to conduct asset searches that aggregate data from a number of sources. Such searches can uncover assets that were previously undeclared or disguised in order to reduce their importance during divorce proceedings.

Digging in a digital world is often worth the effort. Whether the results of the digging effort can be used in a court of law is up for debate. Gathering the types of data noted above regarding a spouse’s personal and professional activities may make a difference in reaching an equitable settlement.

© 2018