Digital Forensics Experts Say Your Smartphone is a Glass Castle in Divorce

Whether or not you watch Black Mirror, you know that our daily lives are immersed in technology. And whether or not you realize it, the inner eye of your smartphone is always watching.

Accessing and using digitally stored evidence is not new. The sheer volume of data available, however, is increasing. In combination with our friends specializing in digital forensics, savvy attorneys are learning to use it.

If you’ve ever talked to a family law attorney about assertions your ex made, they probably asked for a screenshot of the message. If you’re trying to prove that your ex was drinking while your child was in their care, a screenshot of the Instagram post would be helpful. But screenshots can be altered. And Instagram posts, particularly in the midst of ongoing custody litigation, can be deleted.

We’re “lucky” now that the technology exists to pull mega-bytes of data from a person’s cell phone in a matter of hours. But exact records of text messages and a replica of an Instagram profile are just the beginning.

Think of the information you give your cell phone on a daily basis: You might have appointments with addresses in your calendar. You probably ask Siri for directions to that work meeting (or the hotel where you are meeting your mistress). You might even share your location with specific friends, which, upon extraction, is shared with anyone who’s asking. And those “insta-stories” that disappear in 24 hours? Well, you probably see where this is going.

The point is, now more than ever, nothing is actually a secret. You probably will not ever be under more scrutiny than when you are going through a divorce or custody litigation. Your ex, their attorney, the judge, a mediator – they all want to know what you’re doing when, and how you’re spending your money. And your smartphone is a glass castle.

Not only will your attorney (or opposing counsel) be able to get the information, they’ll be able to authenticate it – that is, prove to the court that the information is what they say it is – because it was pulled directly off your phone. No one will be able to accuse the texts of being altered and you probably won’t be able to argue that you weren’t at Bikini Bottom Bar at 3pm last Tuesday (the argument that you just went for the food still stands).

The best thing you can do is understand what is possible with smartphone evidence and be open and truthful with your attorney if your device holds secrets.



ABOUT THE AUTHOR: Keeley Nickelson an attorney with FORESTER PURCELL STOWELL PC, a Northern California law firm focused exclusively on specialized counsel for complex divorce and family law issues. The firm regularly represents business owners, professionals, and other high net worth individuals (or their spouses) in divorce, premarital agreements, and related actions. Keeley can be reached at or 916 293 4000. This information is general in nature and should not be construed as legal advice. Follow FPS on Facebook, Twitter and Instagram: @law_fps
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