Effectively Using Digital Evidence in Divorce

As the world has moved from analog to digital, so too has evidence in family law matters. Digital evidence often plays a primary role in many California divorce proceedings, with litigants and courts increasingly relying on it to affect outcomes. And because most communications and financial activity are now digital, divorcing spouses often leave behind extensive digital evidence. Here, our Stockton divorce attorneys explain the ins and outs of using digital evidence in divorce proceedings. 

Common Forms of Digital Evidence 

Digital evidence includes virtually all electronically stored information. The most commonly used forms of digital evidence — and a few examples of how parties can use them — in divorce litigation include: 

• Text messages and emails: Can be used to show patterns of behavior, instances of harassment, admissions to certain facts, and agreements between the parties 
• Social media posts: Can be used to show how the parties spend their time and money and whether they are cohabitating with a new partner, as well as to contradict statements made under oath
• Image metadata: Can be used to confirm the time, date, and location photos were taken, which can create precise timelines of a party’s behavior
• GPS data: Can be used to show a party’s movements over time or to confirm that they were not where they claimed to be at a certain time or date
• Financial records: Can be used to show income not reported in financial disclosures, hidden transfers, or spending inconsistent with a claimed financial hardship 

It is important to note that unauthorized access to a party’s digital records is unlawful. While a party may lawfully use information they are authorized to access (e.g., transaction records from a shared bank account, call records from a family phone plan, etc.), they may not hack into another party’s password-protected accounts, install keystroke recorders, or use spyware. Evidence obtained unlawfully may be excluded from legal proceedings. 

How Courts Use Digital Evidence 

Digital evidence has probative value in many divorce-related matters. For example, in property division, digital evidence can support claims that a spouse intentionally hid assets. In child support and alimony matters, digital evidence can be used to establish that a party’s actual income exceeds their reported income, or that they will achieve financial self-sufficiency sooner than they claim. In child custody matters, communications between the parties can show that a parent consistently fails to follow a parenting plan. 

A Note on the Use of Recording Devices 

Readers should note that California is an all-party consent state. In family law matters, this generally means that one spouse may not record conversations with the other spouse without the other spouse’s knowledge and consent. Unlawfully recorded conversations are inadmissible as digital evidence in most legal proceedings, and recording a conversation without the other party’s consent may subject the person recording it to criminal penalties. 

Put Forth Your Best Evidence With Help From a Stockton Divorce Attorney 

Many family law matters turn on digital evidence. That’s why it’s so important to work with an attorney who knows how to locate, authenticate, and — most importantly — gain admission of digital evidence. For more information, please contact a Stockton divorce attorney at McKinley, Conger, Jolley & Galarneau via our online form or by calling 209-477-8171.