Let us face it; technology can have a powerful impact in modern divorce litigation. Divorcing litigants are often stunned to see the level of technology being used against them during divorce and custody proceedings. Sometimes, litigants are not even aware such evidence even exists.

Consider the following facts, which may apply to your current divorce or custody situation:

  • There are underground servers that store copies of website pages that were previously deleted. Technology experts can frequently find these deleted pages for use during the divorce and custody process.
  • Cellphone carriers do not keep copies of text messages for more than a few of days before purging the text messages from their servers. Moreover, even if your attorney timely subpoenas the text messages sent by your spouse from the cellphone carrier (before they are purged) the carrier will not likely release the actual text messages based upon protections of federal law. However, the carriers do retain (and will release and produce) the dates and times of when such messages were sent to an individual.
  • If you think that your information has been deleted from your computer hard drive or phone—think again. Forensic computer experts are often able to extract deleted data from computer and smartphone hard drives so long as the drive has not been physically damaged or destroyed. This recovered data can include documents, photographs, videos, and email messages thought to be deleted.
  • Every available email, text message, Tweet, Facebook post, LinkedIn entry, Snapchat or Instagram photo, or other social media communication that a divorcing litigant has ever made may be retrieved and used against that person to either impeach or serve as a party admission at trial.
  • Every new smartphone uses GPS and data to locate the user. However, that location data is retained on the device (and possibly third-party mapping applications) showing exactly where and when the holder of the phone traveled over a period of time.

Given the increased reliance on electronic communications as evidence in divorce and custody matters, carefully consider the following principles before pushing the “publish” button on your latest Tweet or Facebook post.

  • You should assume that every aspect of your online presence will be used as evidence in court. Do not include anything in your posts that you would not want a judge to see.
  • Divorces can rouse many emotions. Do not send anything impulsively or while feeling emotional. Texts sent in moments of anger or desperation can be taken out of context and used against you in court.
  • Prepare a draft of all communication and carefully review before sending. This will help ensure that your message paints an accurate picture of you and will not be misinterpreted or distorted by anyone.

Remember that after you hit the Tweet, Send or Post buttons on your devices, your messages are backed up and likely accessible to your spouse and his or her attorney. However, in addition to thinking before you communicate, there are some additional steps you can take to protect yourself in the online world. Consider the following simple steps before (or as soon as possible thereafter) a divorce or custody case is ever contemplated:

  1. Perform a Google search with every variation of your name, including a search for images, to ensure that no inappropriate information about you exists on the web.
  2. Review your privacy and security settings on all smartphone and social media accounts.
  3. Do not “friend” anyone on Facebook that you do not know personally. Investigators routinely to try to gain access to individual profiles and information to learn everything they can.
  4. Change all online passwords to social media accounts, smartphones, wireless routers, bank and investment accounts, life insurance and other financial accounts.
  5. Avoid posting a “Tweet” on Twitter. If you must Tweet, be sure to disable the Tweet location settings and try not to say anything disparaging out your soon-to-be ex.
  6. Avoid sending Snapchat photos or posting Instagram photos unless you are absolutely certain such information will have no relevance in your divorce case—even then you should still think twice about posting. Remember, especially in the case of Snapchat, software exists that can recover photos and conversations that were ‘deleted’ by the application.
  7. Disable your LinkedIn account or ensure the accuracy of your LinkedIn profile page.

Consider taking these simple steps if a divorce or custody proceeding is looming on your horizon. For further and specific information concerning the use, or protection, of electronic communications during litigation, please do not hesitate to call me at 202-872-0400.