Your Digital Trail and What it Can Mean for Your Divorce or Child Custody Dispute

Today it seems like many people live their lives on their smart phones and through social networks. Many could not imagine a day without texting on their cell phone or updating their status on Facebook. However, for an individual facing divorce or child custody dispute, when not managed properly a digital trail can be a serious liability.

What many do not realize is that activity on Facebook, Twitter, and MySpace can often be used as evidence in many family law proceedings, including a divorce or child custody proceeding. Increasingly, people have found their posts, status updates, pictures, and comments used to contradict their statements in court and as evidence of poor judgment, drug and alcohol use, and spending habits. A survey by the American Academy of Matrimonial Lawyers (AAML) found that 81% of attorneys saw an increase in cases last year using evidence obtained from social networks, with Facebook being the most widely cited.

Beyond social network activity, phone messages can be used in similar ways. Texting and other activity on smart phones leaves a digital trail that can be used in a custody, child support and divorce proceeding. For people who constantly communicate via text, their text messages can provide a written record of what they were doing, thinking, and planning at any given moment. Another survey by AAML found that 92% of attorneys saw a rise in the use of evidence taken from a smart phones and 94% saw a rise in the use of text messages as evidence.

Spying and snooping can also pose a significant risk. For a divorcing spouse, nothing can be more tempting than taking a peek at their ex‘s email account or web history. However, even if it is a shared computer, snooping can have very serious consequences. In New Mexico, privacy laws prevent an individual from reading, copying, or intercepting communications by telegraph or telephone meant for another without the consent of the sender. 3-12-1(C) NMSA 1978. Like many states, the New Mexico law does not specifically cover email, but there are signs that the law is likely to catch up soon. Even though the issue is still being debated, a man in Michigan is currently facing felony charges for accessing his wife‘s Gmail account during a divorce.

Joining a dating site while in the process of obtaining a divorce may also be counterproductive. Most divorce attorneys discourage dating in general before a divorce is finalized. Apart from the added stress that bringing another person into the relationship entails, dating before a divorce is final could have detrimental effect on an individual‘s case, affecting issues of property division, spousal support, child custody, and child visitation.

Even though retail therapy may seem like a harmless way to relax in a stressful period, many divorce attorneys also advise against it. Sometimes spouses go on shopping binges with marital assets to get revenge on their exes. This tactic, however, often backfires, increases debt, and adds stress to an already stressful situation. A spouse‘s overspending can sometimes be used by the opposing spouse as evidence of mismanagement of marital funds and can be harmful in disputes over support and child custody.

Divorces and custody disputes can create an extremely contentious situation, where private matters are brought forward and scrutinized. It is more important than ever to realize that in a connected age, people leave an increasingly detailed digital trail which may end up in front of a judge.

These are all issues that you should be discussed with an experienced divorce and family law attorney early on in a divorce or custody proceeding. It is far easier for your attorney to address these issues in a proactive manner than to learn about them from the other side at what will likely be very inopportune times.

Collins & Collins, P.C.
Albuquerque Attorneys


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