Don’t Make These Divorce Mistakes That Can Jeopardize Your Case

In the last few decades, technology has grown at an exponential rate. It is no wonder then that spouses who are getting divorced may be affected by technology in new ways. Many people live their entire lives online. This allows them to connect with others even if physical distance is between them. However, it can also create an environment that is rich in evidence that can potentially be used against them.

Here are some of the biggest digital mistakes people make in divorce, as well as some tips to help you avoid them.

1.   Blasting Your Ex on Social Media

81% of top divorce attorneys reported in a survey back in 2010 by the American Academy of Matrimonial Lawyers that they had seen an uptick in the number of cases using social networking evidence. In the years since, more social networks have been created, along with new and innovative ways that digital evidence is presented.

Some types of evidence that spouses may present in divorce cases include:

• Tweets that demean the spouse
• Photos that show the spouse in an unflattering light, such as engaging in drinking, drugs, or promiscuity
• Dating app profiles that were created before the separation
• Posts that communicate controversial beliefs or opinions
• Videos showing the spouse violating the court’s orders

Courts have little tolerance for battling spouses. If a spouse talks negatively about their spouse online, they may assume that the spouse is also talking like this in front of the couple’s children. This could negatively impact your custody position.

2.   Trolling Your Spouse Online

Many spouses share devices or online accounts. After they separate, they might still have access to login information. In some situations, the clandestine actions of seeing and copying information online can cross over into criminal activity.

New Jersey has a number of laws that may apply to these situations, such as:

• Harassment (N.J.S.A. §2C:33-4)
•  Cyber harassment (N.J.S.A. §2C:33-4.1)
• Stalking (N.J.S.A. §2C:12-10)
• Criminal invasion of privacy (N.J.S.A. § 2C:14-9)

Violating these laws can influence the judge against you. It can also subject you to potential fines or even jail time.

Other acts such as invasion of privacy with photographs, films, or videotapes can make you liable for actual damages and liquidated damages of $1,000 per violation.

Any of the following digital tools could potentially subject a spouse to problems with the family court due to privacy violations:

• Video surveillance
• GPS tracking
• Drone-spying
• Wiretapping
• Hacking of computers or data
•  Revenge porn

3.   Not Substantiating Digital Evidence

While digital evidence can be powerful, you must still be able to authenticate it. Your spouse’s attorney may question whether the evidence you are presenting is real or fabricated. Faking digital evidence is simpler and more common than in years before. “Deepfake” evidence is manipulated audio or video evidence that uses artificial intelligence to mimic a person’s appearance or voice.

Evidence that digital evidence may have been manipulated includes:

• Choppy edits
• Pixilation
• Artifacts of Photoshopping
• Metadata that does not match

Family law attorneys may be able to access metadata to verify critical information about the evidence, such as the date it was made. They can also help substantiate how the evidence came about by examining witnesses about who made it, whether it has been edited, and whether there is other evidence that substantiates its existence, such as a cell phone log. A family lawyer may hire a forensic expert to help analyze or substantiate evidence.

4.   Not Checking for Digital Assets

Just like many people live their social lives online, many also have financial ties online. You and your spouse may have a lot of digital assets that are subject to division during the divorce, such as:

• Physical devices, such as cell phones, laptops, and tablets
• Electronic and cloud storage
• Online shopping accounts
• Online financial accounts, such as PayPal and Venmo
• Photos and videos
• Artistic works, writings, and other copyrighted materials
• Online subscription accounts, like Audible or gym apps
• Ecommerce accounts like eBay
• Online stores on Etsy and other marketplaces
• Loyalty program benefits, such as frequent flier miles

One particularly complex type of digital asset is cryptocurrency. This asset by its nature is anonymous. Therefore, tracking it down can be difficult. There is no bank or credit card associated with cryptocurrency. Instead, it is recorded in blocks of encrypted data. Typically, cryptocurrency owners hold their digital coins online through a third-party exchange with a private key.

Cryptocurrency may become slightly easier to trace in the near future. Beginning in tax year 2023, the treatment of cryptocurrency will change. Digital assets will be reclassified as securities instead of property. Exchange companies will be required to report customers’ contact details, gross proceeds of their digital asset sales, and capital gains and losses to the owners and the IRS. Entities will also be required to report accepting $10,000 or more in digital assets. However, if the owner moves assets offline and does not sell them, it can still be difficult to identify cryptocurrency.

How to Avoid Digital Mistakes in Divorce

Now that you are aware of the potential digital mistakes you might make, you can take steps to avoid them, including:

1.   Stop Using (Or Limit) Social Media Use

Some family lawyers advise you to stop using social media while your divorce case is ongoing. If you can’t bring yourself to do that, you can drastically limit what you say and post on social media. Avoid any mention of your divorce case or any negative comments about your spouse.

2.   Lock Down Your Digital Life

Once you have separated from your spouse, you will want to ensure that you are also digitally separated so that your spouse does not access information about you online without your permission. Some ways that you can do this include:

• Taking an inventory of your digital connections and severing them
• Not using a shared device for confidential communications
• Getting a separate phone and data plan
• Cancelling shared IDs, email accounts, social media accounts, and cloud storage accounts
• Operating your own online accounts and backup accounts like iCloud
• Removing the “Find My” app from your devices
• Keeping your cell phone locked when not in use
• Changing known or weak passwords
• Deleting unfamiliar apps
• Turning off location services

3.   Enter into a Nondisclosure Agreement

You and your spouse could enter into a non-disclosure agreement to have more assurances that you will both respect each other’s privacy. The terms of a non-disclosure agreement may order you and your spouse not to:

• Post information about your case
• Make negative comments about each other
• Tag each other in negative social media posts
• Disclose information about your finances or business dealings
• Share pictures or information about your children without consent

4.   Use the Discovery Process

Your family lawyer can liberally use the discovery process to identify digital assets and to obtain information from digital accounts that is relevant to your case.

5.   Hire the Right People

As technology continues to evolve, it’s important that you understand how to protect your rights and privacy during your divorce case. You may want to hire a forensic accountant or other digital media specialist for help with your case. You can also seek help from a well-respected family law firm, such as the Law Office of Andrew R. Fischer. You can contact us today to set up a confidential consultation.