Digital evidence in divorce

Recently, Kim Komando wrote a USA Today article on use of intercepted digital evidence in divorce cases. The article was interesting (but please don’t take it as the final word on this complex and evolving aspect of divorce and family law).

Also, keep in mind that the article applies only to certain types of computer data, that is, intercepted communications data. That generally means only real time data, such as internet phone calls, internet chatrooms or instant messenger “chats”, and also e-mail.

But remember, that’s only the tip of the iceberg when it comes to useful data that may reside on a home computer, and, in Florida, probably the least useful information at that, most of the time. Why?

Intercepted communications data, especially real time data, as the article suggests, is generally best for showing marital misconduct or fault. Yet in no-fault divorce states like Florida, fault as such has less and less relevance to most divorce cases.

For the most part that kind of misconduct is unlikely to bear on child custody cases either (unless, perhaps, the spouse is behaving extremely child-inappropriately, such as propositioning other people’s children online).

Practically speaking, however, a home computer typically hosts a tremendous amount of stored information that may be highly relevant and useful in a divorce case. For example, financial information in the form of saved spreadsheets and the like.

The “communications interception” legal analysis doesn’t apply to this type of computer data. With proper handling and in proper cases, this type of data may be very useful (or damaging, depending on your vantage point) in the family courtroom or at the divorce mediation table.