As society becomes more advanced in our use of technology, it’s becoming more apparent that there’s a link between the rise in modern technology and divorce rates. Since their invention, everything from devices to online social networks has made it easier for spouses to engage in extramarital affairs. So when couples want to separate, it’s not unheard of for technology to have some part to play in a breakup, and in some situations, divorce court.
During the divorce, technology can continue to play a role in complicating divorce proceedings. Parties involved in a separation often find that technology they didn’t know existed can hurt their case. Your former spouse may try to weaponize the following pieces of technology against you:
- Cell phone and texting records
- Social media pages
- Hard drives
- Shared accounts
- Shared passwords
Here are 6 ways technology can impact your divorce and how you can better prepare yourself for your separation.
1. Social Media
Social media platforms like Facebook, Twitter, Instagram, and TikTok are often significant contributors to divorce rates. In 2018, a United Kingdom divorce site determined that conduct on Facebook showed up in 20 percent of cases as reasons for the divorce.
At least one spouse blamed the other spouse’s conduct on the site for the divorce. This was usually cheating, flirting, or other types of incriminating behavior. In just a few years, that number had leaped to 33 percent.
During a divorce, it’s becoming increasingly common that a spouse will use social media as evidence in a divorce trial. Such forms of social media may include:
- Facebook posts
- Direct messages to members of the opposite sex
- Messages and posts on social media sites
Social media posts are often weaponized in key areas of the divorce process:
- Equitable Distribution: If one spouse spent a lot of money on an affair, this may be taken into account in the distribution of assets. For example, if a spouse spent $20,000 on a lavish trip while committing adultery, the court may deduct that amount from the equitable portion of the spouse’s share.
- Child Custody: Child custody battles are contentious and stressful. A spouse will weaponize whatever they can—including social media posts—to attempt to win custody of their children.
- Visitation: One parent may argue that visitation should be limited or supervised based on evidence of actions on social media. A parent may argue the other parent is a bad influence or danger to the child.
What’s crucial to remember is that you should avoid posting things online during divorce proceedings. A divorce can be a frustrating and tense experience, so posting something incriminating is a substantial risk to your divorce case. Your spouse can then use that evidence against you in a trial, lowering your standing to the judge.
2. Cell Phones
Over 96 percent of the population owns a cell phone. They have become more advanced in recent years and can track everything from your location and web history to your call history and much more. It isn’t uncommon for a spouse to subpoena text messages in a civil case. They can also subpoena other information such as your call history.
These can be considered evidence of adultery and used as grounds in a divorce. In fault states, this can play a significant part in a divorce case. Even in “no-fault” states, this evidence may negatively impact other areas of your divorce.
Courts often use cell phone evidence to make moral fitness determinations, which can affect outcomes for the following:
- Child custody
- Child support
- Spousal support
- Pet custody
Courts look critically at information regarding threats through text messages and phone calls. In child custody cases, threats—even idle ones—may make a court find someone unfit to be a residential parent.
They can also look into apps and site histories to determine if a spouse has been gambling. This may affect the division of property in a divorce. If one spouse is overly wasteful through gambling or purchases, the court may reduce their portion of the marital assets.
A spouse may also use cell phone evidence to show that their ex is an alcoholic or using drugs. By obtaining text messages, they can reveal to the judge conversations with a dealer, which may impact the court’s decisions about a case.
Co-Parenting and Cell Phones
If you have children and you want to divorce, you should consider how you’d like your child to use their cell phone if they have one. There can be conflicts between parents when they have different ideas on how they’d like their child to use their cell phone, so you should include rules or guidelines about your child’s cell phone usage in your parenting plan.
For example, detailing when the child can contact their parents, the amount of access they have to the device, and any disciplinary actions such as confiscating the phone is crucial in preventing parenting disputes in the future.
Emails contain lots of personal information a person may never think would come to light. Whether these are emails to a lover outside of the marriage, or part of a gambling website, emails can be substantial evidence in a divorce.
When a spouse makes a claim about you in court, they may try to use emails to support their claim. They may even subpoena email records to compel you to produce them if they don’t already have access.
The court may also use emails to determine a spouse’s full assets in a marriage. Highly contested divorces often lead to disagreements about what either party owns and the value of their property.
Email records may show the full extent of a person’s holdings, accounts, and much more. Attorneys will look into your email records to look for any information that might help them in the divorce case.
Illegally Obtained Emails as Evidence
You should never obtain emails through illegal means. They won’t be admissible in court, making them useless to you. Many people try to hack their spouse’s email or steal a computer that contains the emails.
They may use tracking software to get access to private information. If you obtain evidence illegally, you may also face a new case against you and possible criminal charges.
Illegally obtaining emails isn’t worth it. There are legal methods—such as subpoenas—to gather this important evidence. Consult an attorney on how to seek email records lawfully.
4. Hard Drives
Many spouses share a computer. Others have their own but have always had access to their spouse’s computer. The information on a computer is stored on its hard drive.
This can be a treasure trove of information for use in a divorce. People often use their computers to store information like:
- Financial records
- Emails and other forms of communication
- Social media sites and browser history
- Passwords and important information
- Pictures and videos
Many of these can play a role in a divorce. Your spouse may look for evidence of infidelity or may just want to look through financial records. A spouse may legally subpoena a person’s hard drive to review its contents in a divorce.
A subpoena forces the spouse to give up their hard drive for analysis. The records discovered on the hard drive may have a major impact on the court’s decisions, especially when dividing property.
Deleted Information Can Be Recovered
Many people mistakenly believe that deleting something from a computer permanently destroys it. However, a forensic expert can often recover information that a spouse deleted from a computer. If your spouse has attempted to delete incriminating information, you may be able to recover it by subpoenaing the hard drive and having an expert review it.
5. Shared Accounts
Most married couples have shared accounts for different contracts. This can complicate the divorce process significantly. These accounts must be divided and separated. Commonly shared accounts are:
- Cell Phone Plans: When it comes to divorce and cell phone contracts, it can become costly to separate. Terminating the plan early could result in a requirement to pay off the cell phone you got with the plan or early termination charges. The parties may be able to simply pay the fees and walk away, or they can negotiate to split the payments until the contract expires.
- Netflix and Other Streaming Services: Most American homes now pay for at least one streaming service. They usually share an account or have a family plan. During a divorce, the couple can agree on who will keep the existing account and who will leave.
- Email Accounts: Shared emails are the property of both spouses. The easiest solution is to create a new and separate email and stop using the shared account. The parties could negotiate who keeps the email instead.
- Social Media Accounts: If you share a social media account, this is an easy fix. Simply create separate profiles for each of you rather than sharing.
Separating couples should create individual accounts during the divorce process. The more you can separate yourself, the less information your spouse can have against you.
6. Shared Passwords
Spouses often share passwords to joint accounts. They usually know each other’s passwords for individual accounts or cell phones. While common in a marriage, this can be disastrous during a divorce.
Your ex will have complete access to your records and devices if you keep your passwords the same. Your spouse could use this information to incriminate you in court and harm your legal position in the divorce.
Change any passwords for accounts you own or for your devices as soon as possible. This will help protect your information from the actions of your spouse.
The information they could get may be harmful to your position, so you should not give them easy access. They may get access to your:
- Social media accounts
- Individual bank account
- Cell phone
- Tablet or other electronic devices
- Credit cards
You want to protect your information during a divorce. Protect yourself by changing these passwords right away.
Frequently Asked Questions
Can My Phone Records be Subpoenaed Without My Knowledge?
No, your spouse can’t subpoena your phone records without your knowledge. It is a legal requirement for your spouse to notify you about the subpoena. However, what isn’t required is your permission to have your records subpoenaed in the first place.
If your spouse thinks there is something in your records that can strengthen their case against you, they can get their divorce lawyer to request your records. A judge can grant their request and, after reviewing the information, decide whether the evidence is admissible in court.
Are text messages discoverable in a divorce?
Text messages are discoverable in court but can be a difficult process and are not always successful. You must first acquire the text messages through legal means, in which case you would have to get permission from the other party to hand it over during the discovery phase. In most situations, the other party will refuse to give up this information due to privacy reasons.
Alternatively, you can contact the cell phone provider for the information, but in most cases, they do not store the content of the text messages. They may be able to give dates and times of communication. But this doesn’t automatically prove misconduct of the accused party, so the court is unlikely to accept text messages as evidence.
Can text messages be subpoenaed in a divorce case?
Yes, you can subpoena text messages in a divorce case. If the accused spouse deletes evidence from their phone, you can hire a forensic investigator to restore it. But this option can be costly. There is, however, another route a spouse can take.
You could get the court to request their partner’s cell phone records. By law, the cell phone provider can’t show the actual content of the text messages, but they can provide information such as when their spouse sent texts. This can potentially help you in the divorce case.
Keep in mind that cell phone providers keep this information for a limited time, so the timing of a subpoena should take this into account.
Can Facebook posts be used as evidence?
Yes, Facebook posts can be used as evidence in a divorce case. A subpoena isn’t necessary for many situations as social media profiles can be public. However, you can subpoena the information if your partner has a private account.
If your spouse has deleted their posts, the court can request Facebook to provide the records as that information is stored on their servers.
Can Instagram direct messages be used in divorce court?
Yes, you can use Instagram direct messages in divorce court. Like Facebook, you can request a subpoena for Instagram to provide the information, even if your spouse has deleted the evidence.