I thought this article discussing the advent of smartphones, and their influence on divorces, was interesting. What I gleaned from the text, no pun intended, was the notion that the increasing amount of written communication creates an increasingly tangible trail. Thus, spouses searching for evidence of infidelity, or even perhaps confirmation of other suspicions or justifications to file for divorce, are now using texts and other stored written information in their divorce pleadings.
The article quotes the president of the American Academy of Matrimonial Lawyers:
As smartphones and text messaging become main sources of communication during the course of each day, there will inevitably be more and more evidence that an estranged spouse can collect...Text messages can be particularly powerful forms of evidence during a divorce case, because they are written records of someone’s thoughts, actions and intentions.
Someone's thoughts, actions, and intentions can be exceptions to the typical hearsay rules that keep evidence out of court. While text messages may be a newer advent, emails, phone numbers, and call histories may also reveal marital indiscretions.
Facebook is also considered to be a potential source of evidence for divorce proceedings. Presumably, the types of information used as evidence can include those things discoverable from peoples' public status updates, wall posts, or other actions, and may also include private messages, compelled through discovery proceedings (legal collection of evidence during litigation).
It is important to keep in mind that these types of media are not limited to whom they are being sent. For example, it's not just the passionate message sent to the paramour that may fall under scrutiny. An errant message to a friend or relative, perhaps seemingly benign, but revealing something previously unknown, or even an angry message to the spouse themselves, may be admissible. New technology presents new potential blindspots in privacy, and increased opportunities for information collection.
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