Divorce in the Digital Age: How Technology Can Weaponize Evidence in a Divorce

By Dina De Giorgio

Technology has revolutionized our lives, offering unprecedented levels of connection, convenience, and security. From social media and GPS tracking to shared calendars and home surveillance systems, these advancements streamline communication, monitor loved ones, and provide peace of mind. However, when a marriage crumbles and divorce become a reality, the very tools that once fostered connection can morph into weapons for “cyber spying.” As legal professionals, it is crucial to guide clients through this complex landscape, advising them on modifying their technology use and understanding the legal implications of “spying” tactics during a divorce.

Recording Conversations: Legal but Risky

In many jurisdictions, recording conversations is legal as long as one-party consents. However, clients should be cautioned that the value of such recordings can be easily diminished. The emotional strain of recording a spouse, coupled with the potential for manipulation during cross-examination, often outweighs any potential benefit.

Spying on Your Spouse: Illegal and Detrimental

The urge to monitor a spouse’s whereabouts, communications, and activities might be strong, but it crosses legal boundaries. Placing hidden cameras, using spyware, or attaching Air Tags to their vehicle constitutes stalking and harassment. Any information discovered using hidden surveillance, no matter how useful, will be ruled inadmissible by a Court. This applies equally to children. Secretly recording a child’s interactions with the other parent is illegal, and only in specific scenarios, like fearing for the child’s safety, might the court consider such evidence. The legal repercussions are significant, but the damage to the court’s perception of the client’s trustworthiness can be equally detrimental.

Converting Convenience into Spying Tools

Divorce forces a re-evaluation of previously shared technology. Joint email accounts, phone plans, calendars, and home security systems can inadvertently become tools for surveillance and evidence at any trial. Here’s where proactive steps become vital:

• Revoke Shared Accounts: Clients should cease sharing tablets, computers, phones, and email accounts.
• Change Passwords: All existing passwords need immediate updates.
• Seek Expert Help: In suspected cases of spyware or hacking, a forensic computer expert can locate and disable them.
• Request Device Disabling: If a lawyer is involved, petition to disable existing audio/video technology within the home, revoking any prior consent.
• Review Existing Recordings: Clients should secure any stored recordings in the cloud or their devices.

Social Media: A Minefield to Avoid

Social media platforms are fertile ground for evidence gathering during a divorce. Advising clients to stop posting altogether, and potentially including a social media restriction clause in the retainer agreement, protects them from inadvertently damaging their case.

Open Communication is Key

Open communication is crucial, especially in contested custody cases. Clients should be encouraged to utilize designated co-parenting communication tools like Our Family Wizard.

By addressing the use and misuse of technology at the outset of the attorney-client relationship, you can shield your clients from potential legal pitfalls and emotional turmoil. Remember, a proactive approach can prevent the dreaded moment of receiving videos, emails and social media posts that jeopardize your client’s case.

Dina De Giorgio is a partner at Schwartz Sladkus Reich Greenberg Atlas LLP in the firm’s Long Island office. She practices in the area of matrimonial and family law.