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Keeping Secrets from your Spouse in the Digital Age

In a Family Law dispute each party must make full and frank disclosure of all relevant information, so the exchange of information between the parties prior to trial or settlement of a matter is essential. This process is known as ‘discovery’ and it allows the parties to learn (or ‘discover’) information from the other side that may be pertinent to the case. Historically, the process of discovery has involved the exchange of property valuations, income and financial records, tax returns, credit card information, insurance information and information relative to debt.

The emergence of personal and portable computing, smart-phones, digital communication and social media has changed the face of what is ‘discoverable’ information. Consider these statistics:

• By the end of this year, it is projected that there will be 1.4 billion smart-phones in use worldwide (by comparison, the population of Earth is 7 billion).

• By the end of 2014 it is projected that there will be 2.5 billion email users worldwide.

• There are at present 1.36 billion active Facebook and Myspace users worldwide

• Tens of millions of adults (both single and married) partake in online dating, matchmaking or meet-up websites

The statistics show that more people than ever are using digital equipment and media and this trend shows no sign of slowing. People are sharing more of their lives online, often leaving written and pictorial evidence of what they are doing and who they are doing it with. For people in Family Law disputes, this can lead to a treasure trove of electronic information being made available for discovery. If a person tries to hide information, then subpoenas can be issued to Telcos, ISP’s and social media outlets to find it.

Pictures of drinking, socialising, carousing, and even child neglect, together with associated text, can be obtained once shared or posted to social media. Once these pictures or text are available on the open domain of the Internet, either party may have access to potentially damaging evidence against the other.

Text messages can be used to prove improper relationships, inappropriate communications between parents and violations of no-contact orders, among other things. Telecommunications providers have faced an increase in subpoenas seeking this type of information in Family Law disputes. Lawyers have been successful in introducing screen-shots of text messages appearing on their client’s phone as evidence of improper communication.

Similar to text messages, emails can provide a written record of dialogue between parties to a case. Emails can be problematic in cases involving high conflict between parents –everything communicated to the other parent is immediately available to use as evidence and recorded in written form. These emails are then ‘discoverable’ and are relevant to a party’s state of mind and conduct.

If you are involved in a Family Law dispute, you should be very cautious in your use of social media and electronic communication. For further information contact our Family Law Team