Electronic and Computer Evidence in Divorce Cases

BY THOMAS D. COLIN

Whether it is trying to prove that a spouse is having an extramarital affair or that marital assets are being dissipated to an offshore account or even to detect whether your spouse is spying on you, retrieving, analyzing and uncovering electronic and computer evidence is an essential step in the divorce litigation process.  As modern technology continues to develop more devices that retrieve, transmit, save and record data in many different formats, staying on the cutting edge of this area of technology is crucial to the successful representation of spouses in matrimonial litigation.

The number of devices available for the manipulation and storage of data is becoming endless, as are the number of the methods of communication.  These devices include, but are no means limited to, desktop computers, laptop computers, blackberries, iPods, PDAs, cell phones, etc.  Communicating by telephone has been surpassed by emails, instant messaging, text messaging, etc.  In order to swiftly and properly preserve, retrieve, review and analyze electronic data, it is essential for the matrimonial lawyer to develop a strategy and game plan that will systemically, in a tactical manner, find and save the important pieces of evidence to prove or defend whatever claims are being made in a divorce case.  Claims and issues where such a strategic game is imperative include:

(1)  extramarital;

(2)  dissipation of marital assests;

(3)  hiding of income;

(4)  gambling;

(5)  drug use and abuse;

(6)  presence or absence at important child events;

(7)  spying or surveillance of a spouse's activities; and

(8)  pre-divorce planning and manipulation of finances.

An important step in developing that game plan is to retain counsel who has the knowledge and experience necessary to assemble the team of professionals necessary to target the source of electronic data in the most cost effective manner and with the savvy to uncover the other, non-electronic based, circumstanial evidence essential to prove or defend the allegations at issue.

In a recent case, Schoonmaker, George & Colin, P.C. represented a father of four young children, all ten or under, in a divorce case where the mother made allegations of computer child pornography, pedophilia and sexual molestation.  Federal and state law enforcement agencies were brought in to investigate the criminal aspects of the case.  A team of legal professionals and computer forensic experts from coast to coast were retained, a strategy was devised, implemented and carried out to the fullest extent, and a successful result achieved.*

The retrieval of electronic data from numerous and varied computers and computer related devices resulted in the complex recovery of data, including the recreation of screen shots of adult websites at specific dates and times which established, with the aid of other circumstantial evidence, that the father was completely innocent of the wife's charges.  In addition, the electronic and other evidence further established that the mother, or someone on her behalf, planted child pornography to set up her husband before the divorce case was filed.

The custody trial took 86 court days, reportedly the longest child custody trial in United States history, and resulted in the father being awarded sole legal and sole physical custody of the four minor children.  The mother's access to the children was severely restricted by the court.  The computer evidence further proved that the mother was purchasing prescription drugs over the internet from outside the United States.

This case is an extreme example of the importance of computer forensics in the trial of complex matrimonial litigation.  It goes without saying, therefore, that, in selecting counsel for your matrimonial matter, it is necessary to inquire about prospective counsel's experience in the handling and use of electronic evidence.  For more information, contact Thomas D. Colin, at Schoonmaker, George & Colin, P.C.

*Note:  Past performance is not necessarily indicative of future results in other cases with different parties, issues and/or facts.