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In the past, finding evidence in your divorce required hiring a private investigator, digging through disorganized paper files, and getting friends, family, or neighbors to witness your spouse’s bad behavior. Today, quickly evolving technology allows you to gather digital evidence. With the tap of a few keys, you can download financial statements and other documents, save footage from your doorbell camera showing that your spouse brought an affair partner to your home, and track their location via their smartphone. The question is, should you do these things? Divorce experts have some valuable advice regarding the ability to use technology in your divorce, and it is not all encouraging you to do so. At Colorado Divorce Law Group, our experienced Colorado divorce attorneys may be able to assist you in determining what is legal and what is not, how to ensure your privacy is not breached, and how to legally gather any evidence you may have found online that could be useful in your divorce. Call (720) 593-6442 to book a consultation and discuss the details of your case.

Why Privacy Is Vital During a Divorce

Despite how it often appears from the outside, divorce is not just a legal process. Divorce is an emotional, financial, and profoundly personal transition that completely changes the lives of those who go through it. The thoughts and emotions an individual has about their divorce are intensely private and should remain that way, whether good or bad. Yet they may share some of these details with friends or family via text, social media posts, photos, or other means that would allow these vulnerable details to be used as leverage in negotiations or turned into digital evidence in court. 

Additionally, most individuals going through a Colorado divorce will have documents related to property ownership, joint and individual bank accounts, retirement funds, or confidential communications with professionals such as their therapist, lawyers, or accountants. Many people rely on digital tools to manage various aspects of their lives, putting private information into these tools to allow this management. This information can become points of contention or legal evidence if exposed. Sometimes, exposed information might be intentionally leaked so one party can have the upper hand or humiliate the other party in high-conflict divorces. 

How Technology Helps Divorces

Technology can be extremely helpful in divorces. For example, encrypted communication platforms keep unauthorized people from intercepting and reading the contents of those communications, allowing people to communicate with divorce experts such as attorneys, forensic accountants, or others more freely. Document sharing via secure password-protected portals reduces the risk of accident exposure or hacking, such as might occur if the documents were attached to an email, and reduces the time and expense someone may incur by driving to their attorney’s office or hiring a courier to deliver them. 

Telecommunications have opened opportunities for convenient and quick virtual consultations, meetings, and other communications that previously required individuals to travel to an office and meet in person. While this can drastically reduce the time people spend on these meetings, they must still be careful to take such meetings in a private place where no one can overhear them and use a password-protected platform. Co-parenting apps have also helped divorces, providing options for sharing schedules, expense tracking, and communication and journaling features to help both parents feel involved and connected with their children.

How Technology Hinders Divorces

While technology has done great things for divorce, it can also hinder or hurt it in other ways. A public Wi-Fi network is easily compromised, providing hackers with an open window into any unsecured device on the network and allowing them to see what the individual believed was private. 

Social media use has encouraged people to feel extremely comfortable sharing even the most personal information online. While individuals may feel they are only sharing with friends and family, the reality is that those people can easily forward or screenshot what is being shared to an individual’s spouse, potentially turning a simple social media post or a message that was meant to be private into digital evidence used against them in court. Additionally, artificial intelligence (AI) is becoming increasingly deceptive, with fabricated images that may be difficult to distinguish from real ones. While evidence must always be authenticated to be admitted into court, these AI images can be challenging to debunk, and if an AI image is determined to be authentic when it is not, the content of that image could have devastating consequences.

Potential Consequences of a Privacy Breach

Whether an individual is the victim or the perpetrator of a privacy breach in a divorce, the consequences can be devastating. Individuals should exercise caution to ensure they are not the victim of a breach and discuss their options with an attorney before taking any action to find or collect evidence against their spouse. 

Financial Damage

Unauthorized access to bank accounts, which may be considered identity theft under Colo. Rev. Stat. § 18-5-902 can have catastrophic losses and cause long-term problems. If a spouse gains access to the other spouse’s accounts, assets can be transferred, funds withdrawn, and credit severely damaged in a very short amount of time. Perpetrators of these breaches can face a loss of credibility, criminal charges, civil lawsuits, property distribution adjustments, and potentially negatively impact child custody and visitation arrangements. 

Emotional Stress

People are already significantly stressed when they are going through a divorce. Learning that their privacy has been breached can make individuals feel vulnerable, anxious, and insecure about what else may happen due to the breach, according to the Cloud Security Alliance. Other common emotions arising from these breaches include paranoia and betrayal. Some divorce experts also state that it can affect the individual’s mental health to the point that they struggle to cope with the divorce proceedings.

Negative Impacts on Legal Outcomes

When someone’s digital privacy has been invaded, the invader may have access to embarrassing or incriminating information. This information may then be used as leverage to get what the other person wants when negotiating the divorce settlement. All digital evidence must be legally obtained and authenticated before it is entered into evidence, but even if the court rules that the information was not legally obtained or not authentic, merely being confronted with it can put a person on the defensive and make it more difficult for them to advocate for themselves. 

Reputational Harm

Emails, text messages, and social media posts can harm a person’s reputation with their family, friends, co-workers, and other business contacts if taken out of context. If those things are made public, they may continue to damage the individual’s reputation long after the divorce is finalized. Additionally, if emails, texts, or social media posts are AI-generated or falsely created by the other spouse logging into the individual’s account and pretending to be them, the content can be even more damaging, and it may be much more challenging to explain to family, friends, and others who see it. 

Prolonged Court Battles

If one spouse invades the other’s privacy, this can result in prolonged court battles as the victimized spouse seeks restraining orders or files lawsuits for illegal surveillance. This increases the costs of the divorce and prolongs it, frustrating both spouses and potentially impacting their relationship and ability to co-parent cooperatively, if they have children. 

Common Privacy Risks During a Divorce

While there are many potential ways a person’s privacy can be breached in a divorce, there are some common privacy risks that people often do not think about. However, they must consider these common risks and ensure they eliminate the ones they can to reduce the risk of a data breach. 

Common privacy risks include: 

• Shared Devices and Accounts: Married couples often share laptops, tablets, and phones. They frequently share logins and passwords for email, social media, and other accounts. These accounts can be goldmines, and a spouse may go beyond simply reading the available information to intercept communications about the divorce so that the victim never sees it. 

• Spyware and Keyloggers: Spyware and software such as keyloggers can record and capture every keystroke, password, email, and even encrypted messages in some cases. While such software is typically illegal, there are limited instances where it is not, such as a parent monitoring their child’s computer use. This means a spouse may claim to have been attempting to monitor a child’s use if caught, and some may feel the advantage it can give them outweighs the risk of getting caught. 

• Oversharing on Social Media: Whether they personally know everyone in their social media contacts, many people share a lot of personal details. Images of a luxurious night out, vacations, social events, or new purchases may raise questions about the individual’s income or whether they are squandering marital assets. Unfamiliar faces in photos may cause questions about infidelity. Sharing images of the couple’s children can cause disputes.

• Email Misuse: If someone’s spouse can access their email account, they can easily read sensitive messages about future plans, finances, or divorce strategy. Email is one of the most commonly used forms of communication during divorces, and if it is not well protected, it can be easily exploited and the information found used to allow the other party to alter their strategy and have more control. 

• Cloud Storage Vulnerabilities: Storing documents in the cloud gives many people peace of mind, knowing they can access the documents from anywhere and they are safe from fires, floods, and other harms in the home. However, if the individual uses weak passwords, does not use two-factor authentication, or forgets that the cloud storage is set to sync to shared devices, their spouse or a hacker may gain access to sensitive information they should not have. 
• Weak Passwords: A pet’s name, anniversary, children’s birthdates or names, parents’ names, and birthplaces of people the person is close to are all passwords that are easy for that individual to remember. Unfortunately, it also means they are passwords that are easy for the spouse to guess, because they know the individual so well. 

Practical Steps to Protecting Your Privacy and Minimizing Your Digital Footprint During Your Divorce

Divorce experts offer many steps that individuals can take to protect their privacy, minimize their digital footprint, and do damage control if there is a privacy breach. Individuals should not take a “wait and see” approach to protecting their privacy. Instead, they should be proactive to try to avoid a breach and then take necessary action if a breach occurs anyway. 

Some of the steps an individual should take to reduce the chances of having their privacy invaded include: 

• Change Passwords: Even if the individual uses automatically generated, strong passwords, they should change all of their passwords upon deciding to divorce. This ensures that their spouse will not have any access through any passwords that may have been shared in the past and forgotten. If the individual uses a password generator to create the new passwords, this will also eliminate any weak, easy-to-guess passwords.

• Enable Two-Factor Authentication: Two-factor authentication (2FA) requires an individual to use a password and a code sent to their phone or generated by an authentication application. This reduces the chances of a spouse or hacker gaining access to an account protected by 2FA because they do not have access to the phone or authentication app. 

• Separate Shared Devices: If an individual shared laptops, tablets, or phones with their spouse, used Bluetooth or other methods of connecting a device to their spouse’s device, car audio system, or other connections, these connections should be severed and the individual’s personal information and accounts removed from the shared devices if the spouse is keeping the devices or vice versa if the individual is keeping them. 

• Review Social Media Sharing Settings: Many people set their privacy settings on social media once and then forget about them. Even if they believe their privacy settings are set to keep their information private, individuals should review these settings to be sure. They should also consider using options that allow them to reset all past posts to be private so that no one can easily access their past posts as evidence without being on the individual’s contact list. 

• Secure Your Smartphone: Individuals may have left their smartphones vulnerable by not setting any kind of lock because they trusted their spouse. Or they may have shared a passcode, PIN, or lock pattern with their spouse as a sign of trust and good faith. Individuals should ensure they have a lock on their phone that has not been shared with their spouse. Biometric locks, such as fingerprints, can provide even more security. 

• Use Secure Communication Channels: When communicating with an attorney or other divorce experts, or discussing anything related to their divorce, individuals should use secure communication channels, including ones that encrypt the content. 

• Consult a Professional: If an individual’s spouse seems to have knowledge of private communications and information they should not have, or the individual suspects their device has been tampered with, they should consult a digital forensic expert. These individuals can scan the device for and remove any malicious software. They may also be able to testify as an expert regarding what was found and any information that may point toward the individual’s spouse as the perpetrator. An attorney with Colorado Divorce Law Group may be able to recommend a skilled digital forensic expert if one or more of your devices may be compromised.

• Limit New Posts and Interactions Online: Social media, discussion forums, and even dating apps are all places where people often feel comfortable sharing information about their divorce, including what led to it and what evidence they have, or their new lifestyle post-separation, such as vacations or new wardrobes. These posts and interactions can be used against them in court, though. Therefore, people should use caution and limit any new posts until the divorce is final. They should also be careful about interactions with new people or people they have not interacted with in a long time, particularly if those people are mutual friends with their spouse.

• Clean Up Old Data: Individuals should review old emails, blog posts, and social media posts and remove anything that may be misused. However, they must be careful not to delete anything that could be considered relevant to their divorce, as this could be considered evidence tampering. When in doubt, the individual should consider consulting with an attorney to determine whether it is appropriate to delete data. 

• Use Secure Payment Methods: When paying legal bills or making divorce-related purchases, individuals should consider using secure payment methods that protect their banking information from exposure. This may include services such as PayPal or specialized legal financing.

• Consider Your Reputation: Individuals who own their own business or have a high-profile career should consider their professional reputation in the community when thinking about guarding their digital footprint. Negative publicity about their divorce can spill over into the rest of their life, including their career. Individuals want to ensure that their spouse cannot access information while also ensuring that their business standing remains intact. 

• Be Cautious About Email Forwards: Individuals should remember that communication channels like emails are not always secure. Once they have sent an email, the receiver can forward it to anyone they choose, including the sender’s spouse. Additionally, individuals should remember that emails forwarded to them that are allegedly from their spouse may not be authentic. While they can show these emails to their attorney and explore the possibility of using them as evidence, they should not assume that the emails will definitely be evidence or that they will help them in the divorce. 

• Choose Reputable Providers: Individuals may be tempted to go with a little-known cloud service because it is cheaper, or they think that since it is not well-known, their spouse will not find it. However, it is better to go with well-known providers who offer robust security, such as 2FA, end-to-end encryption, and have a strong history of maintaining privacy. 

• Organize Information Wisely: Whether online or in filing cabinets in a home office, individuals should file their legal and personal documents separately. Additionally, they should label folders with names that do not give away sensitive information about the contents in case someone sees them.

• Restrict Shared Access: One of the benefits of cloud storage is that the individual can upload their documents and share access with their attorney or other expert. The mistake many make is using a cloud storage account that is shared with their spouse, allowing the spouse access and possibly even alerting them to new uploads if auto-sync features are turned on. Individuals should create a new cloud storage solely for their divorce and ensure that access is limited. 

• Audit Access Logs: Cloud storage, social media, email, and other accounts often allow individuals to see logs of where and when their accounts have been accessed. If these logs exist, individuals should review them frequently to ensure that no one has had unauthorized access. 

• Back Up Critical Files Offline: Cloud storage provides peace of mind that the files are safely stored away from fires, floods, or computer errors. However, an offline backup of crucial papers such as court documents, financial statements, or valuable (or potentially damaging) personal photos can be beneficial. A USB stick or external hard drive stored in a home safe or safety deposit box can protect documents in the event cloud storage fails, and may also provide proof that evidence was fabricated by showing the original date a document or photo was saved to the backup device. 
• Use Care With Children’s Devices and Accounts: Arguments over children’s school information, medical records, and photos can be points of contention in a divorce. A child’s social media use may also be a source of disputes, and children may share details about the family and the divorce on their devices or social media accounts that the parents would prefer remained private. Parents should consider restricting their children’s social media accounts to be private and disabling any location-sharing features. If they believe their spouse is using the children’s device or social media to spy, they should consult with an attorney immediately. 

Avoid Legal Pitfalls When Gathering Evidence

People often want to gather their own evidence. Even when they do not want to gather it, they may come across evidence unintentionally. While some evidence, such as an email or text message directly from their spouse to them, can be used as evidence, other evidence may not be admissible if it was not found legally. Individuals can avoid getting themselves in legal trouble and causing evidence to be dismissed by taking the following steps:

• Delete Shared Passwords: Even if a couple shared passwords during their marriage, this does not mean that they are still comfortable doing so. They may forget they have shared passwords, though, so it is important that individuals respect their spouse’s privacy and delete any passwords their spouse shared with them. Previous permission to use these passwords muddies the legal waters, and while a judge may decide their use is still legal, it is better not to risk it. 

• Do Not Hack Accounts: If an individual knows that there is evidence stored in an email, cloud storage, or other account, they may be tempted to hack the account to access the evidence. In most cases, this will be illegal and could result in criminal charges, civil lawsuits, and other penalties. If an individual believes there is such evidence in a spouse’s account, they should discuss their options for legally obtaining it with a lawyer. 

• Avoid Asking Children, Friends, or Others to Access Information: When blocked from accessing information related to their spouse, individuals may be tempted to ask children, friends, family, co-workers, or others who do have access to the information to collect it for them. However, this can make the evidence inadmissible, based on the way it was collected. Additionally, if the individual asks their children to collect it, custody may be negatively impacted by this request. 

• Do Not Install Spyware on Your Spouse’s Devices: Like passwords that were previously shared willingly, this can be a murky legal area. If the individual owns the devices, it may not be illegal to install spyware, but it may still be frowned upon by the court. Individuals should avoid using spyware or other malicious software on their spouse’s devices, even if they know it will yield results. Those results may become inadmissible once it is known how they were gained. 

• Avoid Using Location-Tracking Software: Especially in cases where the individual wants to prove their spouse was having an affair, they may be tempted to install location-tracking software on the spouse’s phone or other devices. However, aside from the fact that any information gathered this way may be inadmissible as evidence and may cause the judge to think the individual is creepy and controlling, it may also result in the individual becoming obsessed with checking their spouse’s location, potentially causing them to lose touch with reality and become paranoid. 

• Record Phone Calls or In-Person Conversations With Consent: Colo. Rev. Stat. § 18-9-303 allows the sender or receiver of a phone call to record without the other party’s knowledge or consent, but anyone else can be charged with wiretapping. Even though it may be legal for the individual to record their conversation with their spouse without consent, it can present an image of someone who is deceptive, which is not the image an individual wants to present in court. Instead, individuals should inform their spouse of their intent to record before doing so. 
• Avoid Using Intercepted Information: Some email accounts, such as Gmail, allow one user to have their emails sent to another user’s account. While spouses may have enabled this and forgotten about it, using this information is another slippery slope. If a user comes across evidence in this way and does not know how to stop having the information forwarded to their account, they should first speak to their attorney to learn how to legally obtain the evidence, and then discuss how to inform the spouse that they should turn off this function. 

How a Colorado Divorce Attorney May Be Able to Assist You

Technology has given us a variety of new avenues through which to find evidence. From social media posts to doorbell cameras, virtual assistants to location trackers, we have given up our own privacy even as we use settings to maintain some small bit of it. This can fool you into thinking that anything found online is fair game as digital evidence in your divorce. But divorce experts want you to know that to be admissible, evidence must be legally obtained and authenticated. Therefore, it is important that you protect your own data against exposure and use caution in how you obtain evidence against your spouse. An experienced Colorado divorce attorney at Colorado Divorce Law Group may be able to assist you in securing your own data privacy, legally obtaining and authenticating evidence, and recovering from and documenting any device tampering or data breaches you may experience. Call (720) 593-6442 to schedule a consultation to review your case and learn more about keeping sensitive information secure during a divorce.