How to Catch a Cheater

This Week’s Blog by Christopher J. DeMattie

As technology rapidly advances, more and more of our daily activities are uploaded to our many electronic devices.  Information is becoming more permanent, and the electronic trail left behind is growing.  It is extremely difficult to keep an electronic secret, so if your spouse is cheating on you there is a good chance you will be able find out from his or her electronic devices.  In the recent past, the first places to look would be phone logs, text messages, and e-mails, but there are many more clever places to look.

What are the Best Apps to Catch a Cheating Spouse?

iPhone Notes – Most people use this application to take notes or set reminders.  However, did you know you can share your notes with another person?  When you share your notes with another person, each enabled user can edit and view the specific notes page.  So instead of sending text messages or e-mails, a cheating spouse can communicate with his or her paramour through the notes app without leaving an electronic transmission trail such as a text message or e-mail.

Screen Time – This new feature for the iPhone tracks how much time a user spends on his or her iPhone each day.  The data is further broken-down by minutes spent on each app, messages transmitted, and phone calls.  So if your spouse is spending more time than usual text messaging or if he or she is spending time using a new app, especially a new messaging app (WeChat, WhatsApp, Slack, or Messenger) it may be an indication he or she is hiding something.

Uber – Unlike texts and e-mails, absent completely deleting the Uber app, there is no way to delete the trip history.  So by accessing the Uber app you can see your spouse’s entire ride history.

Vault / KeepSafe – Vault (iPhone) and KeepSafe (Android) are apps that let you store electronic data, including photos and videos, in a password protected folder on your phone or tablet.

iCloud – Is accessed by inputting an Apple ID and password.  Per Apple, iCloud backups include nearly all data and settings stored on the device. iCloud backups do not include data stored in other cloud services, like Gmail.

Google Maps – If you access Google Maps and select “Your Timeline” you can all of the places the user has visited on any given date and time.  Like the Uber app, reviewing the “Your Timeline” can be very instructive on reconstructing a person’s day.

How do I Legally View my Spouse’s Electronic Devices?

The first step is generally to serve a Request for Production of Documents or Request for Inspection of an Electronic Device.  By making the Request, you put your spouse on notice as to the materials you are requesting to review and/or inspect.  Your spouse then has an obligation to produce the requested materials, which could include a forensic or mirrored copied of his or her iPhone, laptop, or tablet.  However, your spouse could assert various objections to the Request(s), and absent an agreement, the Court will determine the scope of discovery.

In addition, you may serve on your spouse and his or her cell phone provider, a “Litigation Hold Notice,” directing each to preserve several categories of electronically stored information including text messages.  Generally, cell phone providers only retain the content of text messages for three to five days depending on the provider, so it is unlikely you will be able to subpoena the content of your spouse’s past text messages.  However, if a “Litigation Hold Notice” has been served, it is likely the content, time, and location of the text message will be discovered.

Before engaging in any electronic surveillance, be advised that there are many federal and state laws related to stored electronic communications.   It is advisable to consult with an attorney to verify that you do not engage in any unlawful activities related to your spouse’s electronically stored information.

Broder & Orland LLC, with offices in Westport and Greenwich, CT, concentrates specifically in the areas of family law, matrimonial law and divorce.  As experienced divorce trial lawyers we can advise you how to legally obtain your spouse’s electronically stored information or how to protect your own.