Family law may be a unique practice area, but it’s no different from other areas of law in terms of the constant evolution and changes that impact the way cases are handled. That’s especially true in divorce proceedings, which are not only subject to changing social values, new laws, and various trends, but also the ramifications of a modern era. If there’s one thing that looks markedly different when it comes to divorce cases today and those of times gone by, it’s the use of technology and digital evidence.
Whether you’re a millennial who grew up in the age of the internet or someone who can remember what it’s like to not have tech always at our fingertips, you’re well aware of the impact technology has on our lives, and how it continues to rapidly advance. From impacting the manner in which we communicate and coordinate to how we choose to spend our time, tech and digital advancements have a profound way of shaping our lives.
Though Alexa or that iPhone can provide us with answers about our most mundane and random musings, such technology can also play a role in Texas divorce cases – not only for things like legal research or case docket management, but also investigations and evidence.
Digital Evidence in Divorce
Divorce cases have many moving parts, and although no two marriages or families are exactly alike, many often entail the need to address critical issues regarding things like:
- Property division and debt division
- Spousal support (alimony)
- Child custody, visitation, and child support
- Settlement negotiations, mediation, or litigation
- Complex financial evaluations
Resolving divorce-related issues like these requires meticulous and detailed work that’s tailored to the facts involved. In some cases, including those involving complex issues such as high net worth, hidden assets, marital fraud or misconduct, disputes and litigation, and more, the need for securing evidence to support claims or provide leverage in negotiations can be elevated. In today’s digital era, divorce attorneys are increasingly turning to digital investigations and digital evidence to resolve these types of issues.
Digital evidence in divorce cases may include a range of electronic devices and forms of communication, each with their own specific uses and limitations. Some of the most common examples include:
- Social media posts and photos – You’d be in the minority if you don’t have a social media presence, which is why text, comments, direct messages, and photos posted to various social media accounts often make their way into divorce cases. In fact, over 80% of attorneys surveyed by the American Academy of Matrimonial Lawyers say evidence derived from social medial is being used more often in many divorce and family law cases. As a sounding board for voicing grievances and opinions, social media has the power to hurt and help, which is why any concerns you may have about particular posts should be discussed with your attorney. As a form of communication that often functions publicly, or with and among close friends and acquaintances, it’s important to be mindful of what gets posted and shared. Certain posts (or even certain websites and dating apps) can be used as evidence that a spouse may not be complying with certain court orders (including temporary orders), hiding assets, engaging in abuse, domestic violence, other activity that may impact child custody arrangements or tracing of financial transactions, or even as a means to prove specific fault grounds for divorce.
- Text message conversations – Conversations through text messaging and other message-based cell phone apps may become admitted evidence in a Texas divorce case. Usually, they involve incendiary and emotionally intense dialogue, which can harm the party which doesn’t carefully think before sending something that can be potentially misconstrued or used against them.
- Emails – Emails are used in similar ways as text messages in divorce cases. Though they may be admissible evidence, emails are a form of private communication, and as such are subject to various laws regarding privacy. For the sake of simplicity and erring on the side of caution, focus on protecting your private email communications and passwords, and speak to a lawyer before trying to do any digital espionage of your own.
- Computer/digital files – Your digital footprint is more robust than you might think, which is why many spouses rely on evidence, documentation, and information curated from computers and other digital storage devices. If you have concerns about this type of digital evidence, including concerns that some evidence may be destroyed, a lawyer can help you understand what laws and privacy issues may be implicated in your case, and how you can go about preserving certain documents and financial information, or protecting your privacy. In some cases, forensic investigations through legal means may be conducted if potential evidence is of significant importance.
Some Important Things to Keep in Mind About Digital Evidence & Divorce
Though you certainly have the right to protect your own interests in divorce, and work with legal representation when doing so, you don’t have the right to do anything you please or obtain information in unlawful ways. While digital evidence may function as a sword or shield in divorce cases, they also have the potential to be used against you or implicate issues that put you at risk of adverse consequences or civil/criminal liability.
Because matters involving digital evidence and technology should be handled delicately and with the knowledge of various laws and rules of procedure, there are a few important things you should keep in mind.
- Privacy rights – Our right to privacy is one of the most important rights we have, and it is bolstered by a number of state and federal laws, as well as case law developed through the courts, especially in matters concerning new technologies and forms of digital communication. In Texas, there are criminal and civil cause of action laws which prohibit you from recording or intercepting electronic communication (as well as wire, oral, and mail communication) to which you’re not a party (illegal wiretapping). Additionally, other state or federal laws may apply if communications between you and spouse take place across state lines or involve certain types of confidential or privileged information. Given the intricacies of privacy laws, and the serious consequences of violating them, including both the inadmissibility of evidence and potential criminal charges, you should consult an experienced lawyer before you take matters into your own hands.
- What you may be able to do – There are some instances when you can obtain digital evidence in a lawful manner (and, again, an experienced lawyer can inform you how in your particular situation).This may include some rare exceptions under Texas case law in matters of “vicarious consent,” such as recording conversations between your minor child and the other parent when it is in their best interest. It may also include other situations where “consent” is given, either by one party in a conversation (since Texas is a one-party consent state), or (arguably) in instances when spouses share passwords for social media profiles or e-mail accounts, as well as video recordings made in a public space (but not in places where there is a reasonable expectation of privacy, like your home). There’s a fine line between lawful and unlawful, and properly and improperly obtaining passwords or consent, so always do your due diligence by having a legal professional review the matter first.
- What you definitely shouldn’t do – Aside from going rogue and engaging in espionage without first consulting a lawyer, there are some clear things you shouldn’t do. Some important examples include: (1) recording conversations to which you’re not a party; (2) hacking accounts and passwords without consent; (3) recording your spouse in a private place; (4) tracking your spouse’s movements or the use of certain community property; and (5) indiscriminately deleting digital files and documents that could harm your case or result in other consequences, including claims of hiding assets, fraud, and more. Of course, every case is different, and certain situations may have complicating factors or limited exceptions. What’s true in all cases, however, is that there can be seriously damaging penalties and repercussions on the line to your divorce case and relates issues, and to yourself in matters of criminal conduct.
- Legally obtaining digital evidence – Before you go full-blown secret agent and risk committing a crime, you should know that there are legal means for obtaining evidence. One such way is through the legal process known as discovery which occurs after a divorce is filed. As proceedings are pending, a party can ask for the other to produce certain documentation and evidence under the Texas Rules of Civil Procedure (Rule 196).
- Admissibility – In addition to gathering and requesting evidence in lawful and compliant ways, evidence must also meet standards of admissibility in order to be introduced in your case and in support, or defense against, claims. For example, evidence must be relevant to the case (i.e. it must support or prove a material fact in the case), meet rules of authenticity, and more.
The Bottom Line on Digital Evidence in Divorce
Ultimately, digital evidence can be a very powerful tool in Texas divorce cases, which is why they’re used with increasing frequency during settlement negotiations and litigation. However, electronic evidence and the means by which such evidence is obtained are governed by various complex laws – laws the courts and lawmakers are still navigating in a digital age when things change rapidly, and which can result in adverse repercussions should they be violated.
The complexities associated with digital evidence and divorce is only one part of your divorce case and demand the insight of experienced family law attorneys. By working with proven attorneys like those at Coker, Robb & Cannon, Family Lawyers, you can address these challenging issues with the broader picture of your divorce and your future in mind.
Learn more about your divorce case, rights, and options by speaking with a family law attorney from Coker, Robb & Cannon, Family Lawyers. Our firm proudly serves clients throughout Denton County, Collin County, and beyond. Contact us today.