Technology has become an integral part of our daily lives, which means it also plays a crucial role in divorce and custody matters. Not only can technology provide key digital evidence when it comes to demonstrating spousal misconduct and parental unfitness, but it can also help uncover hidden assets and track co-parent communications. Since technology and divorce go hand-in-hand, it’s essential to understand the ways digital evidence can impact divorce and child custody proceedings.

Digital Records as Evidence in Divorce and Custody Matters

Digital evidence used in divorce and custody matters can come in a variety of forms. Even though marital fault no longer needs to be proven to obtain a divorce in New York, spousal misconduct can still affect other aspects of a case, including property division and spousal support. In custody cases, digital records can be used to show a parent’s behavioral patterns, lack of cooperation, or inability to provide a safe home environment.

The following are some examples of the interface between technology and divorce :

• Doorbells and security camera footage: Footage from doorbells and security cameras at the home are increasingly being used as evidence of spousal misconduct. This type of evidence can potentially support claims about infidelity, parental unfitness, and the safety of the home environment.
• Social media activity: Many people use social media to share updates about their lives with friends and family. Social media platforms such as Facebook, Instagram, SnapChat, and WhatsApp can provide a goldmine of digital evidence in divorce cases. Notably, digital evidence cannot be deleted. Even if you think you’ve erased a post or message, it can still be recovered by a forensic expert.
• Digital files: Digital files from a spouse’s computer, smartphone, or tablet can contain vital information that can be used to support claims of financial misconduct, parental unfitness, and infidelity. They can also provide evidence of a spouse’s assets and debts.
• Text messages and emails: In custody matters, text messages and emails between co-parents can be used to show lack of cooperation and conflict. They can also be used to demonstrate a parent’s involvement in the child’s life. In divorce cases, they can show evidence of a spouse’s behaviors and actions related to financial issues.
• Venmo, PayPal, and ApplePay: These payment apps can be used to support a claim of dissipation of marital assets, or show that a spouse used marital funds to carry out an extramarital affair.
• GPS and location data: Data from smartphones, smartwatches, and vehicle navigation systems can be used to support claims of financial misconduct and infidelity. It can also demonstrate neglectful parenting behaviors, such as engaging in dangerous activities while caring for the children or leaving the children with inappropriate caregivers.
• Co-parenting apps: Co-parenting apps create a record of communication between co-parents. They can also track expenses and document activities. The records from these apps can be used in court to show non-compliance with a custody order or support claims about a parent’s behavior.

Digital evidence can be uncovered through the discovery process during divorce proceedings. In the event a spouse refuses to provide the evidence requested, a court may issue a subpoena to obtain it from a third party. In some cases, digital forensic experts may be brought into a case to recover deleted data.

Admissibility of Digital Evidence in Court

While technology and divorce are entwined, courts allow a broad scope of digital evidence to be used in a case. However, it must meet certain legal standards. Any digital evidence that was obtained illegally or by hacking will not be admissible in court.

Whether the evidence is digital or tangible, it must be relevant in order to be admissible. This means it directly relates to the issues in the case. In addition, digital evidence must be authentic, and not have been altered in any way. Authenticity of digital evidence can be demonstrated through digital time stamps, signatures, and metadata within the data itself. Specifically, metadata can provide the creation date, author information, and history of any edits or changes.

If you’re facing divorce, it’s best to limit your use of social media or deactivate your accounts. Anything you post can be used against you as evidence in court. For example, posting photos of lavish purchases or expensive vacations can be misconstrued by the other side and used to argue you have more assets than you have disclosed. Posts about partying or photos that show you drinking alcohol can be used to make claims about parental unfitness. Critically, anything your friends post on your profile can also cause complications in your case.

Regardless of whether any digital evidence is unfavorable to you, it’s important not to delete or destroy it. This can be considered spoliation of evidence and result in serious legal consequences.

Contact an Experienced New York Divorce Attorney

If you have questions about technology and divorce, and the impact it can have on your case, it’s best to consult with a knowledgeable divorce attorney. At Duke Law Firm, P.C., we are dedicated to providing our clients with trusted representation and compassionate counsel for a wide variety of divorce and family law matters. Offering personalized attention in every case, we work closely with our clients to achieve the best possible outcome. We welcome you to contact us today to learn how we can help.