June 9, 2019

Cell Phone or Smoking Gun?

Cell phones (actually, smart phones) have changed the face of divorce cases, sometimes drastically.  Here are some examples from cases that I have had. 

The divorce mediation was routine: the spouses had simply grown apart and wanted a peaceful divorce.  But when the husband looked at the text messages on his wife’s phone and for the first time found out about her long term affair, the negotiations suddenly became much harder.  In another case, explanations of expenditures was not a major issue until the wife found gambling apps on the husband’s phone.  Again the trust that was needed for a relatively amicable divorce settlement was lost and the disclosure of the husband’s gambling losses hurt his legal case.  

The camera on a smartphone and the saved photos can also make the divorce more contentious and adversarial.  Those photos often don’t only live on the phone.  They can find their way into social media.  I recall the client who had no inkling her spouse was unfaithful until she noticed separate Facebook photos of her husband and one of her Facebook friends in the same exotic location in the same time period.  It turned out the affair had been going on for over a year.  In another case, custody became a serious legal issue, and destroyed the couple’s good parenting relationship, when their child found an X-rated picture of his mom with someone not his dad.

Before the divorce starts, you should share all potentially sensitive and damaging information that might be on your cell phone with your lawyer.  That will give the lawyer a chance to manage the information to lessen the damage to the case.  During the divorce, the best advice is to turn it off and leave it off.  Discuss your usage with your lawyer.  Assume that every phone number, email and text message you send or receive will be seen by a judge.  Similarly, assume you will be questioned by your spouse’s lawyer about photos on the phone or social media.

What is on your cellphone can cause the divorce to take longer and result in higher expenses and conflict.  It can devastate a spouse or even ruin a divorcing couple’s relationship.  And obviously the information can have serious legal significance.

Bottom line – divorcing persons should use their cell phones conservatively and smartly and work with their lawyers to keep the phone from becoming a smoking gun.

Thanks to RJ Media Group for publishing this article in the June 6, 2019 edition of The Cheshire Citizen.

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