Almost everyone today has a cell phone, and most of those are smartphones. We use our phones many times a day, often too many times, for sending email, taking pictures, making phone calls, checking social media, playing games, texting, and a large variety of other reasons. To varying degrees, our phones can provide a startlingly accurate picture of how a person has spent his or her day. As you approach a divorce, you must keep in mind that your smartphone can (and will) be used as evidence in a whole variety of circumstances!
One frequent way that people use smartphones is as a recording device. There are states and countries that require one-party consent and others that require two-party consent. Very broadly, if you are in a two-party consent jurisdiction, everyone being recorded must consent to the recording. If you are in a one-party consent jurisdiction, you can record with the consent of only one party. This typically means that you can give consent if you are on the recording with someone else, you will usually do not have to inform them that they are being recorded! However, it is imperative that you speak to an attorney about the laws in your state or country before you start recording anyone, including your spouse!
As of early 2021, these states may require two-party consent in many, or all, situations:
California
Connecticut
Delaware
Florida
Illinois
Maryland
Massachusetts
Michigan
Montana
Nevada
New Hampshire
Oregon
Pennsylvania
Vermont
Washington
Assuming you can legally record without having your spouse's consent, you can record a conversation and use that recording as evidence in your divorce proceeding. In other words, you may record any and all conversations that you, personally, have with your spouse. You may not, however, record a conversation between your spouse and someone else if neither of those people knows they are being recorded. Recordings of spouses can often be used to show that the spouse is making threats or admissions of wrongdoing.
Cell phones also can be used for photos or videos. For example, if you observe unsafe conditions that your spouse has exposed the children to (like doing drugs or drinking heavily) and you have an opportunity to photograph and/or video record them, this can potentially be useful in a custody dispute. Photos and videos can also be useful to document the state of the marital home when you move out. That way if your spouse tries to argue that you left the house damaged, you have photo evidence to contradict that claim.
In some circumstances, cell phone data can even be used to prove that your spouse is cohabitating with a particular person. This is the most helpful in cases where you are seeking to terminate spousal support in a post-divorce case, or trying to avoid paying alimony in the first place! It can sometimes be possible to obtain cell phone tower information to determine if your former spouse’s cell phone is consistently at a particular place. As most people have their phones with them at almost all times, being able to prove that a cell phone is often in a particular location is compelling evidence that your former spouse does, in fact, reside in a certain place.
You need to understand how to use cell phones to prepare and plan for divorce. They can be a very important part of your process! If you want to learn more, you need to check out The Men's Divorce Planning Bootcamp.
Also, if you want to connect with other men planning for or going through a divorce and get daily advice from our head coach on ways you can crush divorce, join our TRIBE!