May 16th, 2019
Divorce in the Digital Age: What’s on Your Smartphone?
Author: Monica Garcia Harms
Two people can keep a secret if one is not a smartphone. In the digital age, electronically stored data can be crucial in a divorce case. Indeed, according to the American Academy of Matrimonial Lawyers, more than 90% of leading divorce attorneys experienced an increase in evidence obtained from smartphones in the past three years.
A deceptive spouse should beware that most of the information created, stored, or sent on a smartphone cannot hide when a spouse seeking to uncover it connects with the right divorce attorney. E-discovery obtained during a divorce can reveal in someone’s own words what they would never otherwise divulge. Some of this information can be accessed directly through the efforts of an enterprising divorce attorney, while some of the information may require a bit more investigation from a digital forensics expert, but almost everything that comes from or leaves a smartphone can be uncovered using the right tools.
This article will discuss the data that can be harvested from those smartphones, and the benefits of having a savvy attorney on your side.
Salacious Secrets Spotted – Digital Communication
For better or worse (but far more often for worse), the data contained on our smartphones is a mirror of our true inner self, and strips away the mask that we all too often use to hide our more unsavory proclivities. As the data on our smartphones gets more and more private, our inner selves are more and more revealed, often to the divorce attorney’s great utility.
The most obvious, and easily accessible, useful information is already conspicuously available to hundreds, if not thousands of people through direct social media postings. That tweet about how your estranged spouse is the world’s biggest loser might make you feel good now, but it will make your spouse’s attorney feel better when she uncovers it. Posting negative commentary about a spouse or ex-spouse is particularly inadvisable when the parties have children (especially children who are online), whether or not custody is an issue.
Pictures of new jewelry, cars, or other expensive “toys” may provide serious clues as to how marital money is being spent. Public or semi-private posts can reveal the identity and biases of potential witnesses, or even that of a paramour.
One level deeper is the communication that is sent or received from your smartphone, but is not immediately made public—text messages, emails, and direct messages. The information gathered and used from text messages in divorce cases is as varied as it is helpful – ranging anywhere from evidence that two parents are unable to communicate respectfully or constructively with one another to uncovering an affair between one spouse and his or her paramour.
Emails in particular can be instrumental in uncovering hidden assets such as out-of-town investments, as correspondence concerning those items will generally not be sent via physical mail to the parties’ home. Evidence of secret email accounts and/or bank accounts may be traceable if those accounts have ever been used on the spouse’s smartphone; uncovering evidence of an unfamiliar email provider or financial institution may lead to more pointed questions from the divorce attorney to the offending spouse.
Deleting the text message from your phone will not necessarily hide the evidence from inquisitive eyes – the messages may still exist on the recipient’s phone, and the messages themselves may be recoverable for a period of time after they are deleted. Moreover, the metadata (namely, the phone numbers of the sender and recipient, the exact time the messages were sent, and the approximate size of the message) exists permanently, and will reveal that certain messages were deleted.
Even deeper still, your internet history, app usage, and other “hidden” data are obtainable by certain experts, even if you have deleted your internet history. Once again, metadata may provide a wealth of information that was believed to have been deleted. To an enterprising attorney, data regarding app usage and history is far more useful than uncovering what prurient websites a party has been trafficking, but can tell stories about almost every area of a party’s life. Usage of an unfamiliar banking app could reveal your spouse actually has been hiding money; data from a fitness app could show that your spouse is not actually incapable of working, while the presence of data related to Tinder or similar dating apps likely speaks for itself.
Location, Location, Location – GPS and Other Trackers
Another ubiquitous feature of smartphones is their uncanny ability to know exactly where they are at all times. This feature, however, is not limited to the maps app shaving a few minutes off your commute—it can, and often does, provide a lot of useful data in the divorce context.
On the most public level, photos of an individual can reveal much about their comings and goings, whether those photos are explicitly tagged with a location or are simply in a known location. As smartphone photo gallery software continually updates, the user does not have to manually tag the photo—most smartphones will automatically tag the photo’s location as soon as it is taken. Even if the tag has been removed, our friend metadata will again reveal a great deal of information including the precise latitude and longitude where the photo was taken.
The next level of smartphone location tracking is the smartphone’s native location tracker. This secret smartphone function keeps an extremely detailed history of where it has been, how many times it has been at that location, the dates of the visits, and even how long the commute was to each individual location. Obtaining knowledge of exactly where one spouse has been at a given time will prove to be extremely useful in most divorce cases.
Disabling location services on the phone will not save the user from being tracked. The service provider tracks each and every phone on its network numerous times a day. Essentially, every time a phone transfers any data over the network, whether by phone call, text message, or through use of an app, the phone company records the cell tower that was used to transfer the data. Thus, with a bit of investigation, a divorce attorney is able to divine, with a strong degree of specificity, the location of the spouse in question.
The uses for location tracking are vast, and include anything from identifying when and how often a spouse disappears for a tryst with their paramour, to confirming that they were at the local bar instead of their child’s basketball practice. With adequate smartphone investigation, this information can be uncovered and used in the divorce case.
Hit the send/post/tweet button and even your most private messages have the potential to be broadcast to the world around you, revealing your deepest inner self for all to see. While using smartphone technology is an integral part of modern day communication, if you are contemplating divorce, it is essential to retain a lawyer who understands how to navigate the e-discovery process, what smartphone data to seek, and once that data is uncovered, how it can be used.
Monica Garcia Harms co-chairs the Family Law department at Stein Sperling. Her thorough knowledge and understanding of her clients’ circumstances and needs distinguish her approach to the practice of family law. Monica represents clients in complex matters including divorce, contested custody, support and property allocation.