Technology in Divorces and Custody Disputes

Technology is an important and ever-changing part of all our lives.  While, oftentimes, technology makes our lives better, it can also be the source of disconnect and conflict in our relationships.  In modern relationships, technology can lead to conflicts arising from social media postings, disagreements about communication frequency, and countless other confrontations.  As a result, marriages and co-parenting relationships can become stressed and break down, leading to divorce and custody disputes.  When that happens, technology becomes a main focus of the case.

Technology has been our firm’s focus since its inception.  While we may have started off as a firm devoted to online defamation, we quickly realized that technology had invaded all aspects of the law and many firms were having difficulty keeping up.  One of the most common places we saw this gap in modern realities and available attorneys was relating to technology in divorces and custody disputes.  The issues we ran into range from the more basic inability of some firms to download text messages or understand the import of online harassment to more complex situations, where clients suspected their former spouse was anonymously posting content about them online but law firms did not know where to begin.  Retaining a firm that understands technology and is able to effectively harness it to make your case can make all the difference in your custody matter or divorce.  

Co-parenting is difficult and, while the ability to remain in constant contact with your current or former significant other has its advantages, it can also result in disputes over responsiveness, lead to vicious quarrels, and cause serious allegations to be leveled – all exchanged by text message and e-mail.  All too often, we do not think before we hit send but, unlike words exclaimed in the heat of passion or verbal apologies made to appease an angry spouse, our texts live on and can be read by third parties long after the dispute has settled.  When text messages become allegations in a custody dispute, it’s important that they be inserted into your pleadings or entered into evidence in a readable, admissible way.  Conversely, it’s as important that individuals preserve their messages in instances where it becomes necessary to rebut or add context to messages used by the opposing party.  Our office understands that, in today’s day and age, custody and technology are inextricable. 

Custody and Technology: Social Media

It is not uncommon to see Facebook, Instagram, Twitter, Snapchat, and other social media accounts in matrimonial and custody disputes.  While there’s nothing wrong with monitoring another person’s social media account and using it as support for your case, it is a crime to access another person’s account without their permission.  Accessing an account of another without their consent is a federal crime under Section 2701 of the Stored Communications Act, which provides penalties for anyone who “intentionally accesses without authorization a facility through which an electronic communication service is provided or…intentionally exceeds an authorization to access that facility; and thereby obtains, alters, or prevents authorized access to a wire or electronic communication while it is electronic storage in such system.” 

Our firm often relies on an opposing party’s online statements during litigation.  Any statement made by a party can use used against that party in court as a party admission.  Statements and images about or depicting the opposing party’s assets, travel, drinking and drug use, or other information can often be used as exhibits in motions and exhibits.  If you are involved in a matrimonial or custody dispute, it’s important that you consider your own online footprint.  Don’t post pictures or statements you do not want your ex to see even if you have blocked them on social media.  Oftentimes parties create accounts using fake names and pictures to trick others into accepting them as friends to access otherwise private images.

Custody and Technology: Subpoena Power

Attorneys can subpoena third parties and company to gain access to useful information in matrimonial and custody disputes.  Subpoenaing a person’s bank account can shed light on their spending habits and be used to impute income on them; it can also be used to show a person leads a high-risk lifestyle.  Similarly, subpoenaing ride share apps like Uber and Lyft can demonstrate whether a parent has traveled with your children beyond boundaries set by the court.  In some instances, it is also possible to serve subpoenas on a person’s Venmo account, workplace, cellphone provider, or other financial institutions.

The Stored Communications Act (18 U.S.C. Chapter 121 §§ 2701-2712) limits the amount of content an attorney can receive from social media companies, and e-mail and cellphone providers.  Specifically, attorneys in civil matters can only obtain non-content information.  That means attorneys can request IP address information, location data, the time and date of calls and text messages, billing information, and more but can not ask to see the content of the person’s e-mails or text messages.  As a result, attorneys can see, for instance, if a person is text messaging someone, but they would not be able to see the words or images being exchanged.

One exception to this is if the other party consents to the release of their information or a court orders them to provide you with a release or send you a copy of their downloaded account.  Apple, Google, and other companies will provide a user with a copy of their account, upon request.  Google Takeout, for example, allows a Gmail user to download all data associated with their account.  The services and data that can be exported is usually far beyond what users expect and can include, among other things, one’s Google Search History, Google Calendar, Google Drive files, Google Photos, Google Location History, Gmail data, Google Maps, YouTube Search History, and YouTube comments.  Apple will also send a user a backed up version of their iCloud containing files, photos, text messages, and other information.

The moment you find yourself involved in a matrimonial or custody dispute, it’s time to assess your technological position and footprint.  First, change all your passwords and make sure to set two-factor authentication where possible.  Do not stop with your e-mail and social media accounts, but also change the passcode to your phone and iCloud accounts.  Second, review your privacy and security settings on your social media accounts.  Remember that even if you unfriend or block someone, it is still possible for them to see your account by using one belonging to a mutual friend or even creating a fake account.  Always assume that, regardless of the precautions you undertake, if you put something on the internet, it might be seen by your ex and used against you in court.   

Divorce and Technology: Income Disputes

These days, its commonplace to show the best version of your life on social media.  Pictures of lavish vacations, photos of you standing in front of expensive cars, and tagging your posts with luxury clothing brands can all be shown to a court to suggest you have a higher income than you are reporting.  If a judge believes you are underreporting your income, he or she may impute income upon you.  When that happens, child support will be calculated based on an income amount higher than what the parent reports they are earning, increasing their child support obligation.

Divorce and Technology: GPS Stalking

In 2014, the Governor of New York signed Jackie’s Law, which made tracking someone’s whereabouts by GPS part of the list of acts that amount to stalking in the fourth degree – a criminal offense.  Unfortunately, if you believe someone is stalking you by GPS in New York, there are several steps you have to take before the criminal justice system can offer you relief. First, you must clearly inform your stalker that you do not wish to be tracked by GPS.  After that, you have to prove that the stalker continued to track you, in spite of your request.

Stalking in the fourth degree is a misdemeanor offense and, if convicted, a person can be ordered to serve up to three months in jail and pay $500 in fines.  Many critics have argued that Jackie’s Law does not go far enough to protect victims of GPS stalking and puts an unfair burden on the victim. To learn more about stalking laws in New York, click here.  

Divorce and Technology: Unauthorized Access

It is not unusual for partners to have one another’s passwords or access to one another’s accounts during the course of their relationship.  While this practice may be a convenience during the marriage, it can also be a recipe for disaster during a separation.  If are separating or separated from your spouse and no longer wish for them to have access to your accounts, the first step is to change your passwords.  But sometimes, because of the amount of information your spouse has about you or due to existing access to accounts and certain devices, this is not enough.

There are ways to investigate whether your spouse has accessed your accounts that do not require court intervention.  First, write down all the IP addresses you use to access your accounts – work, home, and friends and family.  Second, make a list of all the devices you use to access the account and the make, model, and serial numbers for those devices.  Third, open your account and download your IP addresses and devices  

Divorce and Technology: Social Media

While finding your spouse on Ashley Madison or learning they have been having inappropriate conversations with an ex on Facebook may be the reason you are divorcing, it is not necessarily your grounds for divorce.  New York is a “no-fault” divorce state, meaning it’s not necessary to allege that one party was to blame for the divorce.  Getting a no-fault divorce is quicker, easier, and less expensive than establishing fault-based grounds.  With less conflict between spouses, no-fault divorces often result in less emotional harm to the parties and their children.  Additionally, monetary awards are based on a spouse’s need, ability to pay, and family finances, rather than their role in the breakdown of the marriage.

Divorce and Technology: Subpoena Power

Like with matters of custody, it is possible to subpoena third parties and companies in divorces.  This is often done to establish one spouse’s ability to pay a certain amount or that the other spouse does not need a certain amount. Spousal support, once known as alimony and now called maintenance, is court ordered money paid to support a spouse or former spouse.  Courts can also award temporary maintenance while a case is pending in court.  While New York has a formula its courts use to determine the presumptive amount of maintenance or temporary maintenance owed, the court has the discretion to deviate from those calculations. 

As far as how long maintenance payments should be made, New York courts have presumptive calculations for this too.  Maintenance for marriages lasting fewer than 15 years generally lasts for 15% to 30% the length of the marriage.  That means, for a 10 year marriage, maintenance payments would generally last for a period of 18-36 months.  Maintenance for marriages lasting between 15 and 20 years generally lasts for 30% to 40% of the length of the marriage.  That means, for a 17-year marriage, maintenance would generally last for a period of five to six and a half years.  Maintenance for marriages lasting more than 20 years generally lasts 35% to 50% of the length of the marriage.  That means, for a 25 year marriage, maintenance would generally last for a period of between eight and a half to twelve and a half years. Establishing that one party has the ability to pay more than the presumptive amounts is often done with the assistance of subpoenas.  Civil attorneys can subpoena your spouse’s bank accounts, investment accounts, retirement funds, and other companies to argue your case.