The Growing Likelihood of Electronic Evidence in Your New Jersey Divorce

New Jersey family law courts are increasingly being asked to review electronic evidence. This trend was on the rise long before the pandemic. Yet as our daily reliance on electronics has grown – from social media to Zoom conferences to digital calendars to doorbell cameras – the information captured has proven a veritable gold mine of potential evidence in divorce, domestic violence, custody, alimony and child support matters.

Anyone who is involved in litigation – family court or otherwise – should assume the opposing side is going to use any tool available to gain the upper hand in the case. Family law cases are personal. So, increasingly, are the ways in which we use our electronics in our daily lives.

Some of the ways in which it might factor in a real-life scenario:

• A recovering alcoholic parent is in a photograph shared on a friend’s Facebook page showing her with friends, a glass of wine in front of her.
• An app on a child’s phone clocks how fast the child is going, and learns the mother was traveling far over the speed limit with him in the vehicle.
• Evidence of an online affair shows one spouse spending valuable marital assets on a paramour.
• A recorded call of an argument is used in a domestic violence case.

As our New Jersey divorce lawyers can explain, the law in this state allows only one party to a conversation to record it without the other’s knowledge. Be mindful that while it’s easy enough for you to gather information from texts, social media posts and e-mails, your spouse can just as easily do the same.

One analysis found that more than 80 percent of divorce layers find some evidence on at least one social network that is worth presenting in court. The general consensus in most courts seems to be that so long as it is relevant not unduly prejudicial or procured illegally, it may be used.

Critical to these cases is authentication. That is, whoever was responsible for recording or creating the content must be available to confirm its accuracy. As was reported recently in a legal publication The Recorder, there was a California domestic violence/child custody case wherein an allegation of threats was supported by text messages presented by former wife to the court. It was later revealed, however, those messages weren’t actually sent by the former husband. Allegedly, the name on another phone number had been changed to show up on her screen shot as if it were her ex when in fact it was not. Cell phone records later proved this. Unfair accusations are the kind of thing an attorney can help you effectively address in court.

Some general takeaways to consider:

• Be cautious of what you post on social media (if you post much of anything at all).
• Refrain from doing or saying anything when in communication with your ex that might hurt your position. If you fear you cannot have a conversation without it devolving and you losing your temper, keep your correspondence limited or through a third-party if necessary.
• Keep records of any communications you have with your ex. Even if you don’t plan to use it for anything, it could prove valuable in terms of context if they plan to use something against you. Having the full context of the conversation could prove invaluable.
• Even if you are speaking to someone you believe to be a confidant, don’t badmouth your ex.
• If you spout off about something in the heat of the moment or are concerned about a post you made or something else, bring it to your divorce attorney’s attention right away. It’s always better to prepare a proactive response rather than be placed unexpectedly on defense.

Call Rozin|Golinder Law, LLC today at (732) 377-3367 for a free and confidential consultation.