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Can I Tap My Spouse’s Phone?

The issue of spying on your spouse has become a bit of a hot-button topic in the world of divorces. I think this is a function of most of us living more of our lives online and therefore leaving a bigger footprint in this regard. As such, you and your spouse may be looking into your online behavior with a more judgmental eye. What do those posts on that woman's timeline mean? When did he take those photos? Where was he when he said THAT? These are the kinds of questions that frequently come to mind when examining your spouse's online behavior. 

If your spouse has a legitimate second life that you are not a part of then it is possible or even likely that this second life began with social media use. We know that social media tends to lull us into a false sense of security. We can be made to feel like we are interacting with one or maybe just a few people while we are alone in our home. From there, however, we know that the entire world can gain access to these social interactions because they are being made online. 

This doesn't even begin to scratch the surface of the problems that spouses run into when there is a great deal of social media use in a marriage. From my experience, 1/3 of all divorces probably stem from some sort of "bad" online behavior. We can blame that online behavior on several factors but when it comes to bad online behavior involving social media quite frequently it boils down to marital infidelity that starts online and then bleeds over into the "real world." 

From there, if you suspect that your spouse is cheating on you then you may be willing to go to great lengths to prove that the cheating has occurred. In your mind, it could be that the ends justify whatever means that you use to obtain the scoop on the infidelity that you suspect. Logging onto their social media profiles without their spouse's permission, accessing their computer, or reading their spouse's emails are only a few of the methods that many people use to spy on a spouse's online behavior. 

The question that you need to ask yourself as you prepare for a divorce is how you can ensure that the information that you use is going to be helpful to your case. Will the methods you employ to obtain the evidence be found to be legitimate by a family court judge? Will the information you obtain even be what you think it is? Start to ask these questions now rather than once your case has started. This way you can have a head start on the all-important step of collecting information and developing a strategy to use that information. 

In today's blog post from the Law Office of Bryan Fagan, we will be discussing information related to spousal spying in a divorce. If you have questions about the material contained in this blog post please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free of charge consultations six days a week in person, over the phone, and via video. To learn more about spying and divorce, read on. To learn more information about your specific circumstances and divorce- call one of our attorneys today. 

Potential problems related to evidence obtained on social media websites?

Grabbing a photo of your spouse's social media page and slapping it down on the judge's bench is not how things work in a hearing or trial. Rather, there is a process involved in getting evidence admitted into the record of your case. Once evidence is admitted then a judge can consider that evidence when making rulings. Here are some of the most important issues associated with potential sources of evidence that are found on social media. 

First, it is difficult sometimes to authenticate what you find on social media. Is the purported evidence what you claim it is? That is what we mean by authentication. With the technology these days it is relatively simple to fabricate evidence. Taking a photo of a person and swapping out a background or putting the person in a place he or she has never been tough to do if you are motivated and maybe have some software to help. Have you seen what artificial intelligence can come up with? 

My point is that what you see online cannot always be trusted. Attorneys and judges are learning this and are going to scrutinize anything that you find online. For this reason, you and your attorney need to be prepared to make arguments and show how you obtained the evidence, what it supposedly depicts and how you can assure a judge that the item is what you say it is. 

The next consideration that you need to pay attention to when it comes to social media evidence is whether the photo, video, or posting is relevant. Throughout your divorce, there are going to be issues that are debated or argued. Does the evidence you are attempting to admit into the record make the likelihood of your argument being true any greater or does the opposite to an argument of your spouse? If so, then the evidence is likely relevant. This is not a difficult hurdle for most attorneys to get over when it comes to social media evidence. Judges are not likely to bar potential evidence on relevancy grounds if a coherent argument can be made as to why it may be relevant. 

The third consideration that you need to bear in mind when it comes to social media evidence is who posted the material. If you cannot prove who posted the item, then it is difficult to argue its authenticity. The source of the evidence also speaks to how you obtained it. If a person that you do not know posted the item, then you may have to explain to the judge how you managed to get your hands on it. 

Related to this are questions about your possibly logging onto your spouse’s social media accounts to obtain the evidence. Does your spouse frequently hand out their password to people? If not, then it is likely going to be difficult to make an argument that you are being logged onto your spouse's username was benign. 

When it comes to showing authenticity, you should be prepared to show a judge that your spouse's profile has some identifiable information that causes a person viewing it to know that this is a real profile of your spouse. Photos of your kids, you, or anyone else in their social circle are good places to start. If their workplace is listed, birthday, or any other personally identifiable information can be seen then this will work, as well. 

Discovery consideration

In a family law case, it is common for your attorney and your spouse's attorney to submit discovery requests to one another. This is done to obtain potential evidence and generally start learning about the other person's case or position on various issues. This will allow you to prepare for mediation as well as for a potential trial. Otherwise, there may be limited opportunities to get access to information and evidence that could be critical to your case. 

When it comes to social media and other digital information, discovery requests need to take into consideration the types of evidence that you will be seeking from your spouse. Your attorney will need to give the opposing lawyer notice to make sure that any digital evidence in existence will be available for discovery requests. These records should be preserved if they are relevant to your divorce. Your spouse (and you) should not go and delete profiles, photos, or other social media activities as soon as your divorce is filed. This can potentially come back to hurt you. 

If you know that your spouse is the type of person who is less than truthful or would not hesitate to try and get rid of social media information, then you may want to talk to your attorney about this. He or she can request a hearing before the judge where you all attempt to bring this to their attention early in the case. You all may even want to request a temporary order hearing and insert language stating that no social media evidence should be tampered with or altered until a hearing can be held on the matter. 

One of the questions that we need to ask ourselves regarding digital evidence is how you get the information or evidence into the record in your hearing or trial. Once evidence is admitted into the record the judge can consider the evidence when making decisions in your case. Otherwise, he or she would not be able to and the work that you put in to collect that evidence would have turned out to be worth nothing.

If you attempt to introduce evidence that you've collected from a digital medium, you will likely have to withstand an authenticity objection from your spouse. Authenticity refers to your ability to prove that a piece of evidence is what you say it is. For example, if you are trying to introduce a photograph of your spouse engaged in bad behavior you will have to lay a foundation to be able to ensure that the judge can see that the photo is what you claim it to be.

When it comes to text messages and emails there are some specific steps that you and your attorney can follow. First, when introducing the text message, you should point out who sent the message. Next, the date and time of the message should be made known as well as the person who received the message. Taking a screenshot of the text message in question or retrieving the text message from your cell phone provider is another step you can take to help authenticate a particular message.

One point I will make in this regard is that your attorney should be careful not to try and create a fake profile to gain access to your spouse in their social media profile. This does not mean that your attorney cannot, using their name and likeness, access your spouse's photographs and social media profiles if that information is available to the public. However, creating a fake name or alias to gain access to your spouse's information is unethical for the attorney and will result in the evidence collected not being admitted in a trial or hearing.

What can you do to protect yourself in a divorce?

As you can see, there are many considerations in play when it comes to social media use, electronic messages, and e-mail during a divorce case. While this use of technology can help us be more efficient in our daily lives it can also make your divorce case less simply because of the different considerations that you and your attorney must make in terms of collecting information and protecting your online activities.

With that said, there are some tips and techniques that you can utilize in your divorce case to protect yourself and position yourself well in terms of being able to put your best foot forward when making a case regarding any subject in your divorce. Here are some of those tips. Remember that these are general tips that may or may not apply to your specific situation. You should work with your attorney to help you develop a game plan for your digital activities while going through a divorce based on your specific circumstances.

One piece of advice that I frequently give to clients when it comes to their social media and other electronic activities during a divorce is to simply don't engage. I know that this can seem difficult or downright impossible for those of us who are on our computers, phones, and tablets seemingly all day long. However, I think you can tell from this blog post that sometimes your digital activity is simply not worth it. This is especially true when your spouse can be looking through your profiles and other activities for useful evidence to use against you in a divorce.

A simple tip that you can utilize immediately in your divorce case would be to change any passwords for profiles and accounts that you use frequently. For example, if you are the type of person who uses the same password for all your different activities and accounts then you should consider changing as many of those passwords to two unique passwords as possible. This will limit the ability of anyone, including your spouse, from being able to go in and access your digital material without your permission.

There are technology experts in our community who can assist you with checking your phone, tablet, laptop computer, or desktop computer to determine if they have been compromised in terms of their security. These professionals can scan your computer, for example, to determine if any keyloggers or spyware have been installed to track your behavior. Being able to show a family court judge that your spouse has attempted to track your behavior in this way can be a major benefit to you in your case.

Some spouses use the same e-mail account, for whatever reasons. If this is something that you and your spouse do, you should consider getting a new e-mail address. This will allow you to be able to communicate with your attorney electronically without putting your spouse in a position where he or she can see what you are writing. In the future, it would be wise to never share e-mail accounts or even social media accounts with anyone, including your spouse.

Next, you should never allow your electronic devices to be out of your sight or not protected by a password. This is just general good practice when it comes to electronic security. While it may be unlikely that your electronic devices fall into the wrong hands the possibility certainly exists. A divorce is not the time to put this idea to the test. Take your phone, tablet, or laptop computer with you when you leave the house. You should also keep a password on your computer at home.

Finally, a good rule of thumb is to think hard before posting anything to social media, sending a text message, or sending an e-mail during a divorce. No matter how frustrated you may be, for example, you should consider not posting something derogatory about your spouse on social media. Additionally, you should not post anything negative about your attorney, the opposing attorney, or the judge in your case. A simple internet search will reveal the bad consequences for you if you engage in this type of behavior.

Questions about the material contained in today's blog post? Contact the Law Office of Bryan Fagan

if you have any questions about the material contained in today's blog post, please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free of charge consultations six days a week in person, over the phone, and via video. These consultations are a great way for you to learn more about the world of Texas family law as well as about how your family's circumstances may be impacted by the filing of a divorce or child custody case.

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