In recent years, lawyers have seen an unbelievable increase in the amount of electronic data used as evidence in all lawsuits, including the use of e-mail, internet browsing history, blogs, information placed on social networking websites (MySpace, Facebook, etc.), GPS devices, cell phone and text/instant messaging, computer hard drives and other storage devices, digital photographs, etc. This increase is due, in part, to technology continuously improving, becoming cheaper, and more available.
But what impact does electronic data have in a divorce setting? Several years ago, a survey conducted by the American Academy of Matrimonial Lawyers, 88% saw an increase in the number of cases using electronic data as evidence in the past five years. That survey found e-mail to be the most likely source of electronic evidence and found wives more likely than husbands to use electronic data.
In relatively friendly divorces, electronic data has very little impact. However, in contentious divorces, the impact (and increased costs associated with the time, effort and expense of getting the information, reviewing it, and presenting it to the court) can be substantial.
However, courts do not like it when parties attempt to engage in self-help discovery outside of the litigation process. Depending on what information you are obtaining, you may even be breaking the law since spying on your spouse’s e-mail transmissions, internet usage, or phone conversations may violate state and federal communication privacy and wiretapping laws. The evidence also might not be admissible in court. Minnesota’s Privacy of Communications Act specifically prohibits use of intercepted wire, oral, or electronic communications obtained in violation of the Act. Even if not barred, judges have a lot of discretion and rarely allow illegally obtained evidence.
This does not mean that you divorce attorney can’t or shouldn’t seek electronic information as part of the divorce proceeding. They can and they should. Because of the importance of electronic evidence, the legal system has methods in place to allow parties to get information from each other.
Generally speaking, courts are more than willing to allow parties access to relevant electronic evidence in divorce cases. Finding out that your spouse failed to disclose assets or other relevant information can be grounds for an award of attorney’s fees or worse. It doesn’t help the bad actor’s credibility with the court either.
In one case, Husband gave his old computer to the parties’ daughter. Wife’s attorney had a forensic examination of the computer and found very valuable hidden assets. In another case, Husband found information on Wife’s MySpace page that allowed him to get full custody of the children. This and other information on the internet is extremely valuable and as long as it is readily available to anyone, obtaining it does not involve breaking the law.
E-mails are also valuable. However, intercepting e-mail or stealing your spouse’s password to look at e-mail is probably illegal. Some courts have found that viewing your spouse’s e-mail after he or she has downloaded it and saved it to the family computer is legal and admissible, but before you do so, you should consult your attorney. It is never a good idea to begin spying on your spouse, or anyone else for that matter, without having a clear understanding of what you can or can’t do.
Do not find yourself on the wrong side of federal and state criminal or civil laws (such as trespass or invasion of privacy). Remember that you don’t get around the law by having a friend or paid private investigator do the illegal act for you. Almost as important is that the ill-gotten information is not admissible in the divorce proceeding anyway. So, keep in mind the following:
- Don’t use spyware or intercept your spouse’s e-mails;
- Don’t tape your spouse’s conversations without his or her permission unless you are a party to the conversation;
- Don’t plant bugging devices in your house;
- Do leave the information gathering to your lawyer. In the end, you’ll be glad you did.
Andrew M. Tatge is a business and family law attorney with Gislason & Hunter LLP (www.gislason.com) and can be reached at email@example.com or (507) 387-1115. This information is general in nature and should not be construed as tax or legal advice.