Law evolving as divorces drag in digital evidence


The Atlanta Journal-Constitution
Published on: 02/24/08

Marietta divorce attorney Stephen Worrall increasingly sees clients come to his office and excitedly tell him: "You won't believe what I found on my wife's e-mail."

The information may be evidentiary dynamite — juicy, sordid and damning. But the veteran attorney immediately will halt the budding sleuth mid-sentence. "We stop them right there and determine how he came about it," he said.

More living news

The client may have committed a crime, and Worrall doesn't want to be a party to it.

Evidence like e-mails, cellphone records, Web site records and even GPS information is increasingly making its way into divorce battles, plotting almost indefensible maps of a cheating spouse's footprints.

Electronic evidence has changed the face of divorce. A poll conducted by the American Academy of Matrimonial Lawyers released this month found that 88 percent of its members surveyed had seen a "dramatic increase" in such evidence.

John Mayoue, an Atlanta divorce attorney and author of "Southern Divorce" and "Protecting Your Assets From a Georgia Divorce," said the increase in the use of electronic evidence "has been exponential. It's raging. It's also the most raging issue" in divorce law.

"The day of the private eye peering into a window is mostly gone," he said. "This electronic information is so much better. It's the most compelling evidence in terms of financial wrongdoing, in terms of affairs — someone in their own words saying things they'd never say in court. 'Hey, I'm worth $1 million. Hey, I'm having an affair.' People are more likely to be caught than ever before."

The evidence can be devastating. In a recent case, the wife, who was thought to be cheating, was asked to turn over a cellphone. "She forgot she had photos [of her and her lover] saved," Mayoue said. "They were photos that said they were more than just friends."

But, Mayoue adds, "the vexing issue is that of privacy. How was that evidence retrieved?"

A spouse spurned will stop at virtually nothing to prove a partner has been up to no good. They place keystroke spyware to see what has been typed on a computer. They sneak off with BlackBerries or laptops to get a forensic expert to retrieve information that has been deleted. They steal passwords. They even slap global positioning system, or GPS, devices on vehicles to see where their spouses have gone.

Worrall had one case in which both parties wanted examinations of each other's computer. "Both had Match.com entries on their computers," he said, referring to the online dating service.

Judges are frequently asked by parties in a divorce for court orders allowing them to examine a spouse's computer or retrieve cellphone records. They are also often asked to rule on the admissibility of evidence that has already been retrieved.

Fulton County Superior Court Judge Cynthia Wright, chief of the Family Court Division, said such evidence can be powerful.

"Cellphone records can show they were in Alabama when they said they were in Marietta," she said. "As our technology expands, the ability to track people expands."

Legal bounds still murky

The law has been trying to keep up with technology, said Wright, who sees e-mail evidence in almost all contested divorces. "It's an area of law that attorneys are struggling with. It's a difficult area of law. It's evolving just as technology is evolving."

Georgia law has provisions prohibiting computer theft, trespass and invasion of privacy. But each case has gray areas. Was it a personal laptop? (Most likely not OK to use as evidence.) Or was it a family communal computer? (Probably OK as evidence.) Did the spouse ever share the password? (If so, probably usable.)

"Generally, if the devices are not normally accessible to the person who has 'broken' into them, i.e. password protected, or are not owned by the person who is seeking to use the data, I have ruled out such evidence," Gwinnett County Superior Court Judge Billy Ray said in an e-mail. "If it is not your device, or if you are not a person who has access to it on a normal basis, my rulings have been that you can't use it."

"I have seen GPS tracking devices used," Ray said. "Normally, it is when one spouse also has ownership of the car. It is hard to say they can't do it if it is their car, too. Kind of like breaking down your own front door; if it is your door, you can do with it as you please."

Mayoue said the appeals courts haven't dealt with a lot of the questions yet.

"The courts are slow to deal with these issues," he said. "People haven't pushed these cases [through the legal system]. They've tended to settle."

Damning evidence

Electronic evidence helps settle cases quicker because it is so graphic and damning, said George Stern, an Atlanta lawyer practicing divorce law for 30 years and former president of the American Academy of Matrimonial Lawyers.

Pornography on the computer — thought to be deleted — is a killer in divorce cases, he said, as are e-mails and cellphone calls to lovers.

"You'd be shocked how often a person will call their girlfriend or boyfriend," he said. "I think husbands are much more careless than wives."

Why would people sneaking around not cover their tracks? Stern thinks the use of e-mail and cellphones is so routine that people just don't think about it.

"People get lazy," Stern said. "And, for the lack of a better word, stupid."

Wright said the omnipresence of technology might be an impetus for people to behave.

"The world has gotten smaller with the World Wide Web and computers," she said. Her advice? "Live your life like you're living in a small town."

Inside AJC.COM

Best concert photos

Check out Jeezy's performance at The Tabernacle.

Dining out

Forget waiting in line! Make online reservations.

Weekend plans?

Beat boredom with our "Weekend Best Bets."

Cheer on your team!

Find a local place to root for your alma mater this season.

Pet problems?

Let our experts tame even the wildest house pets.

Laugh out loud!

Video:  Get your lunchtime laugh with Atlanta's hottest comedians.

How to hit the grits

Video: Tips on conquering the grit pit at the National Grits Festival in Warwick, Ga.

Best of the Big A!

Your chance to nominate and vote for Atlanta's best food fun and venues!

Zoo Atlanta

Lions and tigers and bears — oh my! Here's your guide to Zoo Atlanta.

Search AJC Archives

1985 to present     1868 - 1939 Advanced search

Kudzu.com services Find the right people for the job

Keyword     Business Name

AJCPets » The community for Atlanta pet lovers

Do Good Search for non-profit causes near you