By Robert L. Mues   |   March 21st, 2008

With the rise of the popularity of the internet, instant messaging, text messaging and the use of GPS systems, electronic evidence is being utilized more and more in litigation. Technology is having a huge impact on our lives and also the way many divorces are being litigated. Recently 88% of the members of the American Academy of Matrimonial Lawyers (AAML) indicated that they have seen an increase in the number of cases using electronic data during the past five years. Emails were the most common form of electronic evidence offered in court according to AAML president, James Hennenhaefer. Electronic evidence is being used for many purposes including detecting hidden assets, financial misconduct and infidelity.

Antonia Love, a solicitor (attorney) from England recently warned the public that social networking sites are becoming the next tool lawyers will be using in divorce proceedings. She said, “People who use social networking websites to send flirtatious emails to people, who are not their partners, are often lulled into a false sense of security that they are doing nothing wrong because correspondence is electronic and therefore isn’t real life.” Snooping in another’s email account is not uncommon. A Google survey indicated that 27% of women and 21% of men admit to having done it.

Currently over 150 million people regularly use social networking sites, such as My Space and Facebook, and the membership to these sites is exploding. According to Jeremiah Owyang, a noted web strategist, between 250,000 to 300,000 new members join My Space and Facebook each day. Romantic electronic conversations that a party naively believed would remain undetected can, if found, become very harmful. Case in point, the recent stories in the Detroit Free Press about Detroit Mayor Kwame Kilpatrick alleging that text messages made on a city issued pager show romantic banter between him and former chief of staff. That investigation continues. The “fallout” could include criminal prosecution against the Mayor for perjury based on his testimony in a recent police whistle-blower jury trial about this “relationship.” Stay tuned.

While many attorneys believe that the use of electronic evidence may not lead to a huge increase in the divorce rates, most believe that it will make the lawyers job easier since people tend to be much less careful about what they may say in an email than they would in other conventional correspondence.

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Robert L. MuesAbout The Author: Robert L. Mues
Robert Mues is the managing partner of Dayton, Ohio, law firm, Holzfaster, Cecil, McKnight & Mues, and has received the highest rating from the Martindale-Hubbell Peer Review for Ethical Standards and Legal Ability. Mr. Mues is also a founding member of the "International Academy of Attorneys for Divorce over 50" blog.

The Rise of the Use of Electronic Evidence in Divorce Cases
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3 thoughts on “The Rise of the Use of Electronic Evidence in Divorce Cases

  • Pingback:Is email testimony admissible? - WORLD Law Direct Forums

  • May 12, 2008 at 7:49 pm
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    My ex installed a program to moniter emails between my son and I while I was deployed to Iraq. He discovered it and she removed it. He was advising me that he wanted to return home and why. Later during the custody battle, she used these out of order and context, shared them with others and I feel she was in violation of Ohio law for interception of electronic messages. She claimed her intent was to protect the kids in a new environment, but I think her use of them demonstrats otherwise. The law shoulp provide protection and a reasonable expectation of privacy for each parent.

  • January 14, 2009 at 11:37 am
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    Text messages are very difficult to have admitted into evidence. There should be a better way to authenticate this type of evidence, particularly since it is used so much as a primary means of communication between some people. Text messaging provides the psychological and emotional abuser with a shield that allows for an incredible amount of harm via this electronic means. Please remember there is a real person on the other end of these typewritten words!

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