Approximately 2 minutes reading time. Betty and John were both in their mid-seventies, and eager to enjoy their retirement and the fruits of John’s successful career. They had recently celebrated their 50th Wedding Anniversary. Their two daughters – both accomplished and married with children of their own – threw them a beautifully extravagant anniversary party. Friends and family attended the bash, and the toasts were both complimentary and envious at the same time. Everyone asked Betty and John how they had managed to stay happily married for so long. Betty would respond: “We are partners and honest with each other about everything.” Or so Betty thought.
Betty had noticed that John was drinking more heavily than usual. She had also noticed that he locked himself in their home office with the family laptop for hours at a time. He seemed distracted and not himself. Betty couldn’t help but feel that something was terribly wrong, but she couldn’t bring herself to confront her husband.
Betty decided to find out what was on the family laptop that John carried with him everywhere. Betty asked John to meet her at her therapist’s office to discuss some issues she was having. Having arrived before John but stayed in her car and out of sight until he parked, Betty watched John walk into the office and quickly made her move. Parking next to his car, she hopped out, popped his trunk, grabbed the laptop and drove directly to her divorce lawyer’s office. The computer expert was waiting.
Betty was right. The contents of the computer hard drive were revealing and shocking. John was carrying on a long distance affair with a young single mother – 35 years his junior – who lived in Oklahoma. John met her on “Second Life” – an online site where members pick their own “avatars” and create an alternate life. John had been draining the parties’ retirement accounts to pay for his affair, including extravagant gifts, airline tickets, four star hotels, and cash “gifts” to the young woman. John had even redirected his wife’s social security check to an individual checking account in his name that his wife didn’t know about. John had spent thousands on his alternate life.
The legal battle was on. Betty’s case hinged on the information she acquired when she “kidnapped” the computer. But, would the Court accept Betty’s “self-help” method of obtaining the evidence of John’s financial wrongdoing? Or, as John’s attorneys argued, would the information be inadmissible due to Betty’s “illegal” method of obtaining the information? Ultimately, the judge allowed the revelations from the laptop into evidence, as the laptop was deemed a “family computer” to which all family members had access.
Using Spyware Can Be Illegal. With hacking a top news story today many people just think they can buy off-the-shelf spyware and unseeingly track everything happening on the computer. Before you do this a warning: Using Spyware can land you in jail. Spyware can secretly track and record a person’s website visits, computer key strokes, e-mail and text messages. Because Spyware can be easily purchased on-line, most people do not know that Spyware is illegal (a Class E Felony) in New York if used to intercept electronic communications without the consent of the sender or receiver. As a result, any information obtained thru Spyware, no matter how relevant, will not be admissible in a divorce action and you may find yourself facing criminal penalties.
Emails and Text Messages Sent Directly to the Other Spouse. This is the easiest way to gather information to be used as evidence in divorce and/or custody proceedings. In the heat of the moment, people seem to forget that anything in writing can be used against them. E-mail messages can be printed out. Text messages received can be uploaded to a computer and printed using a smartphone app or a screenshot can be taken and printed out.
It is important to remember to save text messages and emails from your spouse if you think they will be useful later on. Older emails and texts can show evidence of verbal abuse, admissions of other types of wrongdoing, and other things that the person who sent the messages might not have written down had they known they would turn up in court as evidence to be used against them at a later date.
Social Media. Checking out your spouse’s social media accounts can reap a wealth of information. For example, if you are trying to hide your income from your spouse, don’t put evidence of your professional success and lavish life style on social media or your website. Social media pages and websites can easily be printed out and used as evidence in a court case.
The case of Fitzgerald v. Duff, a 2013 New Jersey case, illustrates what can go wrong when you brag on social media. Jason Duff attempted to downwardly modify his child support obligation by submitting his 2011 income tax return with a reported taxable income of $21,000 from a cash tattoo business. The recipient of child support, the maternal grandmother and legal guardian of Duff’s seven year old child, opposed Duff’s application claiming that Duff underreported his income and she was actually entitled to a higher child support award. In her opposition papers, the grandmother attached copies of Duff’s website, Facebook photographs and various social media comments demonstrating his financial success and plans for the imminent expansion of his three tattoo parlors. Based on this evidence, the Court “imputed” to Mr. Duff annual income of at least $100,000 and modified upward his child support obligation from $67 a week to $264 per week.
Whose hard drive is it? If the computer in question typically resides in the parties’ home and is used by family members, then the New York courts will uphold a spouse’s right to access electronic evidence on that computer’s hard drive, and by extension smart phones and other devices. It is perfectly legal for one spouse to take that computer, even without the other spouse’s knowledge or consent, to a forensic expert to make a copy, or a “clone,” of the hard drive in order to obtain the financial and personal information located therein. Neither spouse has a “right to privacy” in the family computer’s hard drive.
If you suspect, as Betty did, that there may be valuable electronic evidence that will be important to the case, you should hire a professional to document the existence and form of the evidence and to preserve it for trial. A good computer forensic professional can find hidden or destroyed data in computers, cell phones and other digital devices, provide litigation support and testify as an expert in your case.
Electronic evidence often makes or breaks a divorce or custody case. For Betty, obtaining the family lap top turned the divorce case in her favor. John was ordered to return all the funds he had used to support his paramour to the marital estate for equal distribution to both parties. If Betty had not gotten her hands on the information in the family laptop, the case would have most likely ended in a very different result.
- Remember that whatever you put on the Internet is out there forever.
- That being said, if you are planning to divorce, immediately change all your passwords on each social media site you are on (as well as your personal computer) and change your settings to make your sites “private.” Ensure your privacy controls are always updated and turned on. Check them regularly.
- Do not vent about your soon-to-be ex on your social media sites.
- Do not talk about your children on your social media sites.
- Do not break into your soon-to-be ex’s social media sites.
- Don’t try to hide your true finances, a good computer expert will find everything.
 The names of the parties and certain details of the case have been changed.
 The Court relied on Byrne v. Byrne, 168 Misc.2d 321 (Kings Co. 1996), where the Court ruled that the wife, who had her husband’s company-issued laptop cloned by a computer forensics expert, was entitled to all the information relevant to the divorce that was accessible on the laptop’s hard drive. The laptop was company property, but of significance to the court was the fact that her husband brought the laptop home every night and the parties’ children used it routinely for their homework. The Court reasoned that a computer in a couple’s home is legally equivalent to a filing cabinet because each spouse had access to that computer just as either could physically access a filing cabinet in the home – locked or unlocked.
 Unreported. Superior Court of New Jersey, Appellate Division, Docket No. A-0177-12T4, 2013.
 Forensic acquisition of a computer hard drive or other electronic devices for any legal case should be done by experienced and certified computer forensic professionals. For tips on what to look for when seeking the right computer forensic professional, see http://www.craigball.com/cfexpert.pdf for suggestions.
Judith Happe, Esq.