Digital Footprints in Divorce: How Your Online Life Impacts Your Kentucky Case

In an era where our lives are intricately woven with digital interactions, from social media updates to instant messages and online financial transactions, the trail of data we leave behind is vast. When a marriage is heading towards dissolution, this digital footprint can transform from a mundane aspect of daily life into a significant factor in divorce proceedings. 

At John H. Ruby & Associates, we have seen firsthand the evolving role of digital evidence in family law. The casual posts, fleeting messages, and stored data can all become pertinent pieces of information when navigating the complexities of asset division, child custody, and spousal support. 

What Constitutes Digital Evidence in a Kentucky Divorce?

Digital evidence, often referred to as electronic evidence or electronically stored information (ESI), encompasses a wide array of data created, stored, or transmitted through electronic devices. In the context of a Kentucky divorce, this can include, but is not limited to:

• Social Media Content: Posts, comments, photos, videos, and messages on platforms like Facebook, Instagram, Twitter, TikTok, LinkedIn, and even dating apps. These can reveal information about a spouse’s lifestyle, social activities, spending habits, and sometimes even their conduct relevant to the divorce.
• Text Messages and Instant Messaging: Communications via SMS, MMS, WhatsApp, Facebook Messenger, and other messaging applications can provide direct evidence of conversations, agreements, or conflicts.
• Emails: Personal and sometimes work-related emails can contain information about finances, assets, communications with third parties, or admissions relevant to the case.
• Digital Photographs and Videos: Images and recordings stored on phones, computers, or cloud services can depict assets, lifestyles, or behaviors that may be pertinent.
• GPS and Location Data: Information from smartphones, vehicles, or tracking devices can establish a person’s whereabouts at specific times, which might be relevant in certain circumstances.
• Computer Files and Internet History: Documents, spreadsheets, Browse history, and search queries stored on computers or other devices can uncover hidden assets, financial information, or evidence of certain behaviors.
• Financial Records: Online banking statements, investment account information, cryptocurrency transactions, and records from apps like Venmo or PayPal can be vital for understanding the marital financial picture.
• Cloud Storage Data: Information stored on services like Google Drive, Dropbox, or iCloud can hold a variety of relevant documents, photos, and communications.

The relevance of this information stems from its ability to shed light on various aspects of the marriage and the conduct of the parties, which can, in turn, influence critical decisions made during the divorce process.

The Expanding Role of Digital Proof in Legal Proceedings

The reliance on digital evidence in divorce cases has grown exponentially alongside our societal integration of technology. What might have once been based on witness testimony or paper documents now frequently involves sifting through gigabytes of data. Kentucky courts, like those nationwide, are increasingly encountering digital evidence. This shift means that legal professionals and parties involved in a divorce must be adept at identifying, preserving, and presenting such evidence effectively and ethically.

The formal process of exchanging information, known as discovery, heavily features digital evidence. During discovery, spouses are typically required to share important details about their finances and other relevant matters. This can include providing access to social media accounts (under specific legal parameters), producing electronic bank statements, and exchanging emails or text messages that pertain to the issues at hand. The goal of this exchange is to ensure transparency and allow for a fair and equitable resolution based on all available information.

Common Pitfalls and Misconceptions Regarding Digital Evidence

Navigating the realm of digital evidence is not without its challenges and common misunderstandings.

• Myth: “My Social Media is Private.” Many individuals believe that their privacy settings on social media platforms will shield their posts from legal scrutiny. However, these settings are not foolproof. Information can be shared by “friends,” or a court may order the disclosure of certain content if deemed relevant.
• Myth: “I Deleted It, So It’s Gone.” Deleting a post, message, or file does not necessarily mean it is permanently erased. Digital forensics experts can often recover deleted data from devices or servers. Furthermore, intentionally destroying evidence (spoliation) can lead to severe sanctions from the court.
• Challenge: Authenticating Digital Evidence. Before digital evidence can be admitted in court, it must be authenticated. This means proving that the evidence is what it purports to be – for example, that a social media post was actually created by the person in question or that a text message exchange is genuine and unaltered.
• Challenge: Admissibility Hurdles. Beyond authentication, digital evidence must meet other legal standards for admissibility, such as relevance (it must pertain to an issue in the case) and overcoming objections like hearsay (an out-of-court statement offered to prove the truth of the matter asserted). There are exceptions to the hearsay rule that may apply, but it is a complex area.

Navigating Digital Evidence: Practical Steps for Your Divorce

If you are anticipating or currently involved in a divorce, consider these practical steps regarding digital evidence:

• Preserve Relevant Evidence (Legally): If you have access to digital information that you believe is relevant to your case (e.g., your own emails, text messages with your spouse, or financial records), make copies and store them securely. Consult with your attorney before taking any steps to gather evidence from accounts or devices that are not solely your own.
• Be Mindful of Your Online Conduct: Assume that anything you post online or communicate digitally could potentially be seen by your spouse and their attorney, and could even end up as evidence in court. Refrain from posting disparaging remarks about your spouse, details about your social life that could be misconstrued, or information about significant purchases.
• Secure Your Accounts: Change passwords to your email, social media, online banking, and other sensitive accounts. If you shared devices or accounts with your spouse, take steps to secure your personal information.
• Understand the Discovery Process: Be prepared to produce relevant digital information if requested through the formal discovery process. Your attorney will guide you on what needs to be disclosed and how to do so properly. Failure to comply can have negative consequences for your case.

How Digital Evidence Can Influence Key Divorce Outcomes in Kentucky

While Kentucky is a “no-fault” divorce state, meaning you do not have to prove wrongdoing like adultery to obtain a divorce, the conduct of the parties can still be relevant in certain aspects of the case. Digital evidence often provides insights into such conduct.

• Child Custody and Visitation: This is perhaps where social media and digital footprints can have the most profound impact. Courts make custody decisions based on the “best interests of the child.” Digital evidence depicting a parent’s lifestyle, parenting abilities (or lack thereof), involvement in substance abuse, reckless behavior, or disparaging comments about the other parent can significantly influence a judge’s decision regarding custody and visitation schedules.
• Division of Assets and Debts: Digital evidence can uncover hidden assets or attempts to dissipate marital property. For instance, emails discussing undisclosed accounts, online transactions showing significant spending on an extramarital affair, or social media posts flaunting expensive purchases made with marital funds can all be relevant. This transparency is important for achieving an equitable division of assets and debts.
• Spousal Support (Alimony): Evidence of a spouse’s income, earning capacity, or financial needs can be found in digital communications or online financial records. If one spouse claims a need for support but social media shows a lavish lifestyle or undisclosed income, it can affect the alimony determination. Similarly, if digital evidence shows a supporting spouse cohabitating with a new partner, it could impact their obligation to pay or the amount of spousal support.
• Dissipation of Assets: If one spouse has wasted marital funds (e.g., on gambling, an affair, or extravagant gifts to a third party), digital evidence such as bank statements, credit card records, or communications can help prove this dissipation, potentially leading to an unequal division of remaining assets to compensate the other spouse.
• Domestic Violence or Harassment: Text messages, emails, voicemails, or social media posts containing threats, intimidation, or harassment can be crucial evidence in obtaining protective orders and can also factor into child custody decisions.

Admissibility: Getting Digital Evidence Before the Kentucky Court

Simply possessing digital evidence is not enough; it must be admissible in court under the Kentucky Rules of Evidence. Key considerations include:

• Authentication: As mentioned, you must be able to prove the evidence is genuine. This might involve testimony from the person who created the content, forensic analysis, or other methods to establish its origin and integrity.
• Relevance: The evidence must tend to prove or disprove a fact that is of consequence to the determination of the action. A judge will not admit evidence that is irrelevant or overly prejudicial.
• Hearsay: Many forms of digital communication could be considered hearsay. However, there are numerous exceptions to the hearsay rule. For example, statements made by the opposing party are generally admissible.
• Illegally Obtained Evidence: Evidence obtained illegally, such as by hacking into a spouse’s email or social media account without authorization, is likely to be inadmissible. Furthermore, such actions can lead to civil lawsuits or even criminal charges. It is vital to use legal methods, primarily the discovery process, to obtain digital evidence.

Attorneys play an essential role in navigating these rules, ensuring that relevant evidence supporting your case is properly presented and that inadmissible evidence offered by the other side is appropriately challenged.

Protecting Your Digital Privacy During Divorce

The divorce process can feel invasive, and the prospect of your digital life being scrutinized can add to the stress. To protect your digital privacy:

• Review and Tighten Privacy Settings: Go through all your social media accounts and adjust privacy settings to the most restrictive levels. However, remember this is not a guarantee of privacy.
• Think Before You Post (or Click “Send”): The golden rule is not to post or send anything digitally that you wouldn’t want a judge to see or that could be taken out of context.
• Be Cautious with Shared Devices and Accounts: If you previously shared computers, tablets, or online accounts (like streaming services or cloud storage) with your spouse, be aware that they may still have access. Log out of your accounts on shared devices and consider creating new, private accounts for sensitive communications.
• Communicate Through Your Attorney When Possible: For sensitive matters related to the divorce, it is often best to communicate through your respective attorneys to avoid misinterpretations or creating new digital evidence that could be problematic.

The Evolving Landscape of Digital Evidence

Technology continues to evolve at a rapid pace, and with it, the types of digital evidence and the methods for obtaining and analyzing it. From data stored in the Internet of Things (IoT) devices (like smart home assistants or fitness trackers) to the content on ephemeral messaging apps designed for disappearing messages, family law attorneys and courts must continually adapt. The potential for AI-generated content or deepfakes also presents new challenges for authentication. Staying informed about these trends is part of providing knowledgeable legal representation.

The Formal Discovery Process and Digital Data

The mandatory discovery phase in a Kentucky divorce is where much of this digital information is formally exchanged. Parties can request specific documents and information from each other, and this explicitly includes electronically stored information. For example, one party might issue a “Request for Production of Documents” that asks for bank statements for the past three years (which may be primarily online ), copies of social media posts related to certain events, or email communications regarding a particular asset.

It is vital to comply thoroughly and honestly with discovery requests related to digital evidence. Hiding information or failing to produce requested documents can lead to serious consequences, including sanctions from the court, a negative inference being drawn against you (e.g., the judge assuming you are hiding something unfavorable), or even being held in contempt of court. Staying organized and communicating openly with your attorney about all potential sources of digital information is key to navigating this process successfully.

Navigating Your Kentucky Divorce Case with Confidence

The digital world has added another layer of complexity to divorce proceedings. Your online activities, communications, and financial transactions can leave an indelible mark that may significantly influence the outcome of your case. If you are facing a divorce in Kentucky and have concerns about how digital evidence might affect your case, or if you need guidance on how to properly address digital information within your proceedings, it is important to seek knowledgeable legal counsel. 

The team at John H. Ruby & Associates is experienced in handling the nuances of modern divorce, including the strategic use and defense against digital evidence. We can help you understand your rights and obligations and work to ensure your interests are protected. Contact us today at 502-895-2626 or reach out online to schedule a consultation and discuss how we can assist you.