There is much discussion these days about "fake news." It appears that the term is popping up everywhere, from talk show hosts, the White House, and TV dramas such as "The Good Fight." The Term "Fake News" refers to fabricated news stories published by fake news websites that have no basis in fact but are presented as being factually accurate.
I mention this because just as we in society need to be careful of where we get our news, it is essential to be cautious in your divorce of the emails and electronic evidence used. Not only is it easier in today's world to fabricate the news, but it has also become easier to fabricate all kinds of electronic evidence such as:
- Phone calls
- Emails
- Text messages
- Social media accounts
- Photographs
- Medical records
- Doctors notes
Technology is changing every day at what feels like an ever-increasing speed. Technology has changed many aspects of society, including family law. Technology now plays a role in every part of a case, including:
- Before the case begins
- Discovery
- During the case and
- After the patient has concluded
Technology can have both positive and negative effects on the outcome of any case. To prepare our readers for what to be on the lookout for, we will explore the various ways some spouses have tried to use fake evidence in their cases.
Electronic is Not Assumed to Be More or Less Reliable
Electronic evidence is not automatically assumed to be more or less reliable than traditional documentary evidence. Even before computers and other sources of electronic evidence, there has been a possibility of forgery or misleading editing of:
- Documents
- Letters, and
- Photos
All evidence may be faked. A party introducing the evidence must make a threshold showing admissibility in Texas.
Fake Doctor's Notes
In one of our cases, one of the significant issues in the divorce case was that the wife was having a lot of difficulties getting their child to school on time.
During a temporary order hearing, it was brought to the judge's attention how many times the child had missed school or been tardy to school. As a result of all the absences/tardiness, there was a good chance the child would have to repeat a grade. The judge warned the wife that custody would be switched from her to her husband if the child had any more unexcused absences.
The child continued to miss school. However, the wife could produce doctor's notes showing that the absences were excused. It later came out these notes were fabricated. The wife had a computer background and had used Adobe Photoshop to manufacture the doctor's notes.
When the doctor's records were subpoenaed, it showed the child had never been to the doctor on the days in question. The doctor also testified that he and never seen the child and was quite upset that his signature had been forged.
Fake Medical Records
It has not come up in any of our cases yet, but while researching this article, I came across a website called www.fakeababy.com. This website sells fake:
- Medical records
- Ultrasounds
- Pregnancy tests
- DNA tests
The company says that its purpose is novelty-only and has been responsive to discovery requests.
Fake Text Messages
According to Family Lawyer Magazine, text messages have become the most common form of divorce evidence. A recent survey by the American Academy of Matrimonial Lawyers (AAML) showed that social networking sites had become a hot source for proof.
Text messages are sometimes admissible in Texas divorce courts. Some reasons a spouse may want to try and admit text messages may be to:
- Prove adultery
- Prove family violence
- Prove the best interest of the child and impact custody
Something to be aware of is that cell phone apps are available that can create fake text messages. These apps can be used to create the appearance of:
- Sending or receiving messages from anyone
- Sending photographs
- Creating the impression that a text failed to send
In 2014, the authenticity of text messages was an issue during Johnny Depp and Amber Heard's divorce. The text message exchange in question detailed an alleged assault. The police declined to file charges because there were no physical signs of abuse.
Fake Phone Calls
Just as there are apps out there that fabricate text messages and create the appearance of sending or receiving the notice from anyone, there are apps that fool or "spoof" caller id and make it appear that someone is calling from someone else's phone number.
Chances are, even if you are not involved in a divorce, you may have received a phone call from someone hiding or faking or "spoofing" their phone number.
This is because telemarketers have increasingly been using this technique to make it look like the number they call is a local phone number. This is called neighbor spoofing. I have a co-worker who says he got a call from a telemarketer who had spoofed his phone number, so it looked like he was getting a call from himself.
In a divorce context, someone may want to spoof a phone number to falsify evidence that:
- Their spouse is making harassing phone calls
- Establish proof they are on a business trip
- Create evidence of adultery that one spouse is calling their "lover."
Another reason I have seen spouses spoof numbers other than creating fake evidence is to evade a blocked number. One spouse, for whatever reason, may have blocked their spouse's number from their phone. A tech-savvy spouse decides this isn't a problem because they will use an app to spoof someone else's number that isn't blocked.
This can be problematic if you show that your spouse is harassing you by making repeated phone calls. This is because all the numbers you are being called from are different. However, this can be overcome by getting an app to record those phone calls so you can prove that it is your spouse calling you.
Fake Calls to 911 & Swatting
Swatting is a dangerous version of spoofing. It is where a person will call 9-1-1 from a spoofed number to report a phony hazardous situation such as a bomb threat at the house of the hoax's victim. SWAT teams will respond accordingly, leading to a potentially deadly situation for the victim. This would be a felony under the Texas Penal Code. Thankfully, this has not happened in any of my cases.
Fake Emails / Email Phishing
Spoofing usually occurs with telephone calls and text messages; however, email is another common spoofing source. A sender may falsify the name and email address of the sender. Creating fake emails can serve the similar purpose of creating phony evidence.
However, another reason may be for what is known as "email phishing." Email phishing is a type of online scam where criminals send an email that appears to be from a legitimate company and ask you to provide sensitive information.
If you fall victim to an email phishing scheme from your spouse, they may be able to gain access to your email account, bank account, social media, or other online accounts.
2-Step Verification
One way to help protect against email phishing or hacking is to ensure your accounts are set up with 2-step verification.
Two-step verification is a process that involves two authentication methods performed one after the other to verify that the person requesting access is who they say they are.
For example, you try and log into your email from a computer you have never used before. After you enter your email address and password, if 2-step verification is set up, you would get a text message with a code you would need to enter. This is not perfect protection against phishing, but it does make it more difficult.
Fake Facebook or Social Media Accounts
We have been involved in more than one case where Facebook profiles have played a role. The AAML survey revealed that social networking sites had become a hot source of evidence. Over eighty percent of family law attorneys surveyed have been involved in a divorce where social media evidence has played a role.
In many cases, one party has wanted to use information from the other party's profile as evidence. In the cases where we have been involved, typically, when a fake Facebook profile has played a role, one party created the fake profile to try and friend the other party to gain access to Facebook posts.
However, there have been occasions when one party has created a fake profile of their spouse then exchanged communications back and forth to incriminate their ex.
Save Electronic Communication
One way of combatting fake electronic evidence is to make sure that you save any electronic communication between yourself and the other party. If you do this, you will show that the other party has fabricated something.
Learn Everything You Can About Different Types of Evidence
Whether they are parties to a case or attorneys representing parties to a topic, many people can be reluctant to deal with electronic evidence. However, it is essential to learn and be comfortable working with all types of valuable evidence in a case, including electronic evidence.
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Other Articles you may be interested in:
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- The Dirty Trick of Spousal Spying in a Texas Divorce
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- The Dirty Trick of Damaging, Destroying or Selling Marital Assets in Texas
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Law Office of Bryan Fagan, PLLC | Spring Divorce Lawyer
The Law Office of Bryan Fagan, PLLC, routinely handles matters that affect children and families. If you have questions regarding divorce, it's essential to speak with ar Spring, TX Divorce Lawyer right away to protect your rights.
A divorce lawyer in Spring, TX, is skilled at listening to your goals during this trying process and developing a strategy to meet those goals. Contact the Law Office of Bryan Fagan, PLLC by calling (281) 810-9760 or submit your contact information in our online form. The Law Office of Bryan Fagan, PLLC, handles Divorce cases in Spring, Texas, Cypress, Spring, Klein, Humble, Kingwood, Tomball, The Woodlands, the FM 1960 area, or surrounding areas, including Harris County, Montgomery County, Liberty County, Chambers County, Galveston County, Brazoria County, Fort Bend County, and Waller County.
