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In the not too distant past, divorce attorneys building cases had to follow paper trails and rely heavily on expert witnesses' live testimony. Uncovering all aspects of a spouse's life, especially the parts meant to be secret, could be a painstakingly slow, meticulous affair.

How times have changed. In the age of social media, smartphones and the internet-of-things (IoT), divorce attorneys are finding that much of their work now revolves around digital investigations. And concrete evidence, once difficult to find and establish, is theirs for the taking.

But while the proliferation of digital data has made their lives easier, it has also created its own set of new challenges, and redefined, in some respect, what it means to be a divorce attorney. While the cases and goals may be the same, it's a whole new world for litigation and research.

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Case-Building Data

To be sure, most of a divorce attorney's work does not rise to the technical level of data forensics. And that's mainly because most spouses keep much of their digital information out in the open and readily accessible.

“Social media is probably the easiest thing to work with,” said John Slowiaczek, president of the American Academy of Matrimonial Lawyers and managing partner at Slowiaczek Albers. “Generally people aren't real smart when it comes to social media, and they put flagrant abuses of behavior out there for everybody to see.”

For Michael Stutman, founding partner at Stutman Stutman & Lichtenstein in Manhattan, “social media has been the biggest boon to divorce lawyers over the course of the last several years, because it just sets forth so much of the information that people may otherwise have to provide through live testimony.”

And for many divorce attorneys, gaining access to social media evidence is fairly easy. While “oftentimes judges are reluctant to require a person to turn over social media that is not readily available,” Slowiaczek said, it's quite rare that social media content is inaccessible.

Even on the off chance that spouses are not connected on social media and can't see each other's profile or postings, for example, friends of the couple will usually “hand over the information to a spouse, so it's just a backwards way of getting it,” Slowiaczek said. “Sure, you'll miss some stuff, but you don't need everything.”

There are times, however, such as when a spouse deletes information on their social media account, when divorce attorneys need to reach out to social media or internet companies directly. In those situations, getting a hold of the right information can become tricky.

“If you do not ask for the data or subpoena the data properly, you end up with this unintelligible mass of indecipherable code,” Stutman said.

What's more, many of these companies “are resistant” to such requests for access “for a host of different reasons,” he added. “So it is not as easy as it should be, and I think we can just leave it at that.”

Of course, social media content is far from the only thing making divorce attorneys' work easier. “A common feature in all divorce cases is looking for the answer to the question of where's the money,” Stutman said.

“And since we moved away from using cash so much and we've moved to credit and debit card transfers, things have been much more traceable and easier to find,” he said. “And as a result, in the divorce world we have become much more adept” at tracking that information.

Stutman added, “It's almost become secondary for people who do a lot of high-end divorce cases to learn to understand the role of the forensic accountant. Lawyers now are able to do that themselves.”

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Eloping With E-Discovery

Divorce attorney access to data, however, relies on much more than just the ability to find it online or obtain it from its source. Sometimes it's a question of performing e-discovery on data repositories like hard drives or mobile devices.

And for that, Stutman said, divorce attorneys almost always look outside their offices. “Almost everybody outsources” e-discovery work, he noted, in no small part “because there is a rule that says that a lawyer shall not represent a client in a case where that lawyer ought to be called as a witness.”

Though outside of divorce law firms, such e-discovery teams are vital to divorce cases. “Whether it's partner-related disputes, or whether it's a legal custody or physical custody battle, there is data that can be gleaned from a variety of different sources if you get to it soon enough,” Stutman said.

“Of course people think that when they hit the delete button on data residing on any device they are using, that data disappears,” he added. “But that's just not true, that's not how computer memory works.”

But performing e-discovery on a spouse's computer, mobile phone or other electronic device doesn't come cheap, and it often won't happen unless clients are willing to fund it. “It's very expensive to do that,” Slowiaczek said. “You have to have the right client and the right financial circumstances to enable you to” perform e-discovery.

If financially viable though, divorce attorneys usually find that courts will consider data obtained through e-discovery is allowed, provided it is relevant and can be secured. “If the request will lead to potential evidence or relevant evidence, then the court is going to allow discovery to go forward. But many judges will also require people to sign protective orders, which means you can't disclose information to third parties,” Slowiaczek said.

There are, however, issues that can arise regarding the legality of certain types of discoverable data. “People oftentimes will use GPS devices for purposes of tracking” their spouse or another party, Slowiaczek explained. “But the law in each state varies as to the ability to use a GPS device [for surveilling]. Some states it's illegal to place a GPS device on another person's car, in other states it's perfectly legal.”

And the situation gets even more complex should the car that is being tracked be owned by a company or third party and not the spouse or the person-of-interest being tracked, he added. “Generally speaking, you should never put a GPS device on a vehicle you do not own.”

Of course, GPS data is just one of the many types of information that are regulated differently by states and their courts. But navigating this legal labyrinth is just one part of the burden divorce attorneys need to deal in today's court. There is, after all, the question of data authenticity.

“The problem with a lot of that data is laying the proper foundation in order to have it admissible in court of law,” Stutman said. “It doesn't take much to be able to spoof an email address and create things that look and kind of feel like they might be authentic. You need people with skilled hands who aware of the protocols of the creation of these documents and of this data to make sure it's authentic. And that's not an easy task.”

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The Data-Driven Divorce Fallacy

While digital evidence has transformed the way divorce attorneys work, it has, for the most part, not changed the nature of divorce itself.

“I know it was a popular view that when Ashley Madison got hacked, and that kind of data got released and people had access to it, that all of a sudden nobody can hide,” Stutman said. “I just have not had a single person come to me and say that they were propelled to dissolve their family because their spouse was carrying on an affair that they didn't know about until they looked on their phone.”

“I think people are going to get divorced or remarried for circumstances that are separate and apart from evidence that is available,” Slowiaczek added.

“We're human beings, and we're in many respects driven by our emotions, and if you have people who are angry, jealous, sad, revengeful, bitter, it doesn't matter what kind of evidence is out there,” he explained. “If they think their spouse has a boyfriend or girlfriend and is doing something inappropriate, they don't really think through what evidence is available. They are going to file for divorce and let the chips fall where they may.”