Question

What kind of electronic evidence is pursued in a Rhode Island divorce, and how is that obtained and used in court?

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Timothy J. Conlon - Family Law - Super Lawyers

Answered by: Timothy J. Conlon

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Providence, RI
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Divorce in the modern age is not the same as it was in the past. While many spouses may find it easy to hide financial information or vent about their divorce on Facebook, there is always a digital paper trail that can be followed — and Rhode Island courts will consider a lot more of this online evidence than you may believe. 

There are three primary sources of electronic evidence that may be pursued in a Rhode Island divorce: social media posts, computer files and backups, and text messages/phone records. Any information that is considered public, or is obtained from shared property by the couple (such as a home computer), is often fair game in a divorce. This evidence can be used in a variety of ways — from proving that one spouse is hiding assets, to advocating for a more favorable custody arrangement due to some mean-spirited social media updates. 

Social Media Posts 

While you may think you’re just sharing that photo with your friends, social media posts are capable of reaching a much larger audience, and they can have a significant impact in your divorce. Consider any of these possible scenarios: 

  • The husband can’t make it to court, citing an emergency. The wife finds a picture of the husband at a food festival that day on his friend’s Instagram account, showing that the husband was lying.
  • The wife/mother is posting statuses that attack the character of the husband/father. The severity of these attacks may have a negative impact on their child’s ability to form a relationship with the father. The court may consider this when determining child custody and visitation rights.
  • The husband is posting pictures of big-ticket purchases and extravagant vacations, which may factor into the court’s decision to award child or spousal support to the wife.
  • The wife has a restraining order out on the husband. The husband sends a direct message to the wife, which is in direct violation of that restraining order. 

Social media posts can be archived, authenticated and used to show where you’ve been, what you do in your free time, and what you really think and feel about aspects of your divorce and your family. Many people are reckless on social media because they have a false belief that posts are private and cannot be used in court. When you are going through divorce, always be cautious when posting something on your profile. 

Computer Files And Backups 

When you have a shared computer, or “family computer,” the court often views that device and all the information contained within as marital property. A shared computer is essentially a digital filing cabinet, and it is fair game during the discovery process. Especially when dividing assets and property, the financial documents within that computer can be of great use to the court. 

In some instances, one spouse may try to hide assets during or prior to the divorce. The information within the family computer may show they have a higher net worth than they voluntarily reported. Even if that spouse deleted data on that computer, that data may not be lost — it could still exist within an old backup. 

While the family computer is fair game for both parties, a more private device such as a work computer or personal smartphone may still be used to obtain data, though it typically requires a subpoena from the court. Computer data plays a vital role during the financial aspects of divorce and can make all the difference when determining asset division, child support and spousal support.

 Text Messages And Phone Records 

Phone data may be more difficult to access, but whether the data is retrieved via a subpoena or the data comes in the form of a text or phone record shared with another party, the information can influence the outcome of your divorce. 

Many people send text messages as if they are in a soundproof room, unaware that these messages may very well be used during your divorce, similar to how social media posts are used. An even bigger problem — a spouse may delete or alter texts or phone records when going through divorce to make themselves appear more favorably. At best, this practice is deceiving; at worst, it’s illegal. 

Be Careful What You Send Or Post 

We live in a digital world. In fact, evidence in your divorce may come in a digital form more often than not. When you are going through a divorce, you need to think about every step you take before you take it. The courts are more tech savvy than many people think, and something as simple as one Facebook status or Instagram photo can significantly change the outcome of your case. 

Disclaimer: The answer is intended to be for informational purposes only. It should not be relied on as legal advice, nor construed as a form of attorney-client relationship.

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