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Smartphones Can Be Used as Evidence in Divorce Cases

Smartphones and Social Media grow more popular each year as a communication tool, but many people fail to realize that these innovations can provide vital evidence in a San Jose divorce. Pictures, videos, text messages, Facebook posts, and Tweets can all be used to settle arguments that would otherwise be a case of “he said – she said” in the courtroom.

You might think that proving adultery is why smartphone evidence would be relevant to a divorce case; however, California is a no fault State, and specifically excludes evidence of specific instances of misconduct. Nevertheless, you don’t have to be cheating on your spouse in order to find your smartphone the subject of a courtroom debate. Texts, Tweets, and/or Facebook posts about being frustrated with your child’s misbehavior could call attention to your parenting abilities. If you’re currently unemployed and seeking alimony, posts that indicate you spend a lot of time playing games on Facebook, or a picture of you after that long motorbike ride to Sturgis after you have claimed disbility based upon back pain, might suggest you’re not serious about finding a job. Anything relating to entertainment expenses or impulse purchases might be used to imply you’re withholding information about the state of your finances or possibly trying to hide assets.

Electronic communication can be legal to use as evidence in a divorce case. This includes communication to your spouse, and can include communication to your children or friends. Electronic communication is especially powerful as courtroom evidence because people will say things they don’t necessarily mean in the heat of the moment, and the messages can lack the contextual clues associated with other forms of communication. At the same time, the party seeking to enter the communication into evidence will surely argue that the communication shows what the other party really thinks and/or means, and that the unguarded nature of the communication makes it more credible than any guarded and/or attorney prepared testimony. It can be powerful stuff.  

It appears intrinsically ironic to a San Jose divorce lawyer that the Internet was first created as a military tool, and websites like Facebook have as their primary business model the gathering of useable information (presumably for marketing purposes), yet a huge proportion of the users of these innovations seem to have utterly forgotten what they are designed for. Riots in Iran, the fall of Mubarak in Egypt, and the unrest in Syria can all be directly tied to the passing on of information by websites, including Facebook and Twitter.  A competent San Jose divorce lawyer will certainly try to make use of these wonderfully effective informational weapons, and be aware if the issues raised by the Federal Stored Communications Act.     

The safest course of action for anyone considering divorce would be to stop using a smartphone and stop posting on Facebook and/or Twitter completely. However, many people dislike this option, because these innovations offer great convenience for both work and play. So, wise use of technology should be your goal.

A good San Jose divorce lawyer will advise you to picture a judge standing over your shoulder whenever you are posting anything on any website or using your smartphone. Do not send photos, videos, emails, or texts that you would be embarrassed to have introduced as evidence in a courtroom. Never send anything in the heat of the moment, and always take time to reflect on how your message might be interpreted by an outside party.

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