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Family Law: Digital Divorce 101

By   Brook Schaub

April 24, 2015

Securing E-mail Accounts
On a recent divorce case we worked on, one spouse suspected the other of hacking into a personal Gmail account in order to gain possible financial information that might be valuable in the divorce settlement. The spouse used the security questions to change the password for the account and gained access to all personal and business e-mails present on the account.

Our task was to prove the spouse committed the hacking. Committing a crime during divorce discussions may not affect the outcome of any settlement; however, it would not be looked upon favorably by a judge. As you would imagine, it would cast a shadow on the character of the offending spouse.

Two subpoenas and a little time online quickly identified evidence that the spouse was the offending party. The Internet Protocol address used to hack the account was traced to a hotel Wi-Fi in another state. The hotel registry verified that the current love interest of the spouse was registered there at the time, and the cell tower and GPS data from the spouse's cell phone traced to the same hotel at the time of the hacking. The spouse subsequently exercised the right against self incrimination to a new set of interrogatory questions.

Think about your own answers to online security questions. Would your spouse know your favorite sport, mother's maiden name, and other simplistic questions commonly used? The preventive solution is to lie on the security questions. The computer is only looking for a match between the ones and zeros, it does not care how many children you have, or the street you lived on in grade school. This is a point that should be mentioned to your clients at the onset of divorce proceedings. All of your initial meetings should emphasis having your client change passwords and security questions on all online accounts, not just banking and email.

More Trouble with E-mails
In another case, a computer forensic examiner was hired to look at the data on one spouse's computer. The court order was very specific on what the examiner could reveal to the hiring attorney from his examination. In violation of the agreement between counsels, and what was approved by the court, the examiner provided privileged e-mail communications to the one counsel, who subsequently gave the e-mails to his client, the opposing spouse. An examination of the opposing spouse's computer proved the e-mails were provided and opened by the soon to be ex-husband. The lawyer providing the e-mails was tossed from the case by the judge, and the husband's credibility with the court diminished significantly. A secret spy program had also been placed on the client's computer, which is not that uncommon an event in family law cases.

The computer is not only the avenue to investigate and identify hidden assets, fund transfers, driving directions to safe deposit boxes, unknown credit cards and bank accounts. It also provides an electronic trail to the opposing party's life and character. Addictions (from gambling, shopping, drugs, or pornography) to extramarital affairs, manipulating finances due to the divorce, or using eBay/PayPal to sell assets, to evidence of spying on the spouse electronically, all can be obtained through computer forensics. In most cases, attempts to destroy evidence or hide these tracks has been present in some form on the computers we have examined over the years.

Don't Forget Texting, Skype and Chats
Many conversations take place these days through texts and online chats. There was a divorce case where the husband was claiming poverty, only the examination of his computer showed him sending thousands of dollars in assets to his Brazilian girlfriend, which was verified in his deleted Skype chat. The chat was not something an IT professional would normally locate, nor would an attorney ask for in an e-discovery.

At the onset of each new family law case, counsel should interview clients concerning computer use, e-mail accounts, and determine if computer forensic examinations would benefit the client. The expense for a forensic computer examination for matrimonial litigation is typically more affordable due to the limited issues at hand.