Electronic communications such as texts, email and even posts on social media sites such as Facebook and Twitter are fast becoming the most important pieces of evidence in divorce cases. In fact, 94 percent of 1,600 lawyers recently surveyed by the American Academy of Matrimonial Lawyers (AAML) claimed that text messages had increasingly become the most damaging evidence in divorce cases. The same survey shows sharp increases in evidence via texting (62 percent), social media (81 percent) and emails (23 percent). So, how can you protect yourself before and during a divorce?
We suggest you consider the following tips
Protecting your digital assets
The most important thing you can do to protect your digital world is to change all of your passwords on a rotating basis and do not write them anywhere snooping eyes may find them. Rules of thumb for strong passwords are using words not typically associated with you combined with a special character and number.
Not only does this apply to your email and social media accounts, but to especially to the password that “unlocks” your smartphone. As texts have increasingly become the most common form of evidence in divorce cases, these sometimes emotionally-charged messages need to be shielded from potentially prying eyes. We are not advocating dishonesty; but, we understand that there may be occasions where a person engages in communications they later regret. A myriad of life circumstances can cause even the best of us to fall short of our aspirations. We simply advise people to avoid a spiteful or angry spouse from taking unfair advantage of you in a divorce for lapses of judgment you probably regret.
Is snooping software legal?
Passwords are also important for your computer, laptop and new devices such as an iPad. Why? Some spouses try to obtain evidence (or even communications between their spouse and a divorce lawyer) by installing “snooping” or spyware software onto their spouse’s digital devices. Snooping software takes digital “pictures” every few seconds of incoming emails and other information, which can then be sent automatically to an email address.
The legalities of snooping software are often murky, so most divorce lawyers advise their clients to refrain from becoming a cyber spy. Courts are increasingly permitting the discovery of public posts on Facebook and Twitter, but occasionally even private emails. Emails are generally considered private and sometimes confidential or privileged if to a lawyer. This renders snooping software to capture a spouse’s emails potentially illegal. The result is Courts may be reluctant to admit this into evidence, if at all. It is important to note that divorce law / family law is evolving rapidly in the area of social media, texting, spyware and the like. This means that what might be inadmissible today may change tomorrow.
Worried about spyware?
If you are worried about spyware being installed unknowingly on your digital devices, there are anti-spyware programs that can detect them. However, not all anti-spyware programs can do the job. If you want to be certain you aren’t being “watched” by spyware? Take your devices to technicians who specialize in detecting digital spies.
The best practice is to avoid posting, tweeting, texting or emailing anything you would not want the World to see, including your spouse. But attorney-client communications are a concern. While they are privileged and inadmissible, the damage is done simply by viewing them-in seeing your strategies and plans of how to approach the case. If you are in a contentious divorce or believe it’s a matter of time, take time and protect yourself. You can lose custody of your children over this—in addition to significant assets.