She was pregnant with her third child when she suspected her husband was having an affair. The signs were all there -- he was working more and had some questionable credit card purchases. “I knew in my heart he was cheating, but he swore he wasn’t,” said Marissa, who asked that her last name not be used because her divorce proceedings are ongoing. “And it’s so easy to believe someone who is lying when they are telling you what you want to hear.”
Marissa searched his belongings for proof. She found it in his car. She and her husband of 10 years had decided not to buy cell phones because they didn’t have much use for them. But then she found a secret cell phone, turned it on and recorded the phone number. She logged into the cell phone carrier’s Web site and plugged in her husband’s phone number. There it was – the phone bill with a complete list of incoming and outgoing calls. “They were all calls to a specific girl. All ones from a specific girl,” Marissa said. “I printed it out, and he couldn’t deny it then.”
Marissa began suspecting her husband was having an affair when, despite his increased working hours, he wasn't getting paid more money. Then she looked at the gas credit card bills and noticed that he was purchasing gas at a station five miles from work, in the opposite direction from home. The cell phone proof settled it for her. Today, Marissa is in the process of divorcing. She kept the phone records, but she is not sure how they will play out in the case. “Now that I am actually filing for divorce, I want to make sure I have them,” Marissa said. “You never know.”
Marissa is one of many people who have used electronic methods to get proof of spouses’ wrongdoing, and then to use that information in divorce proceedings. Gaetano Ferro, the president of the American Academy of Matrimonial Lawyers, said using electronic methods to collect information for divorce proceedings is on the rise. “If you asked me 10 years ago how often I saw that in a case, I would say not often,” said Ferro, who practices law in New Canaan, Conn., with Marvin, Ferro & Barndollar, L.L.C. “If you asked me now, I would say often. It’s rampant.”
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Ferro said that in the beginning, most people were getting information about their spouses by looking through their e-mail. Now he is seeing clients go to more complex measures by cloning spouses’ hard drives to see what they can find, or even by installing spyware on computers. Spyware is software that that can be installed on a computer to monitor, control or intercept a user’s interactions.
Recently Ferro was involved in a case in which they inspected the hard drives on the computers both members of the divorcing couple were using. In all, the court subpoenaed the information on 10 to 12 hard drives. “It was a gargantuan task,” Ferro said. “It consumed days and days of depositions. Days and days of court time.”
It was worthwhile in the end, Ferro said. The wife had asked for the information from the computers because she was making allegations about her husband visiting pornography Web sites. When the computer experts examined the hard drives, they found that it was likely that the wife had planted the porn. “So she shot herself in the foot,” Ferro said.
Ferro said that most divorce cases are using some sort of electronic evidence-gathering methods. In fact, the AAML offers seminars on the topic. But even with all of his experience, Ferro said, innovations always surprise him. “It’s fascinating to learn how these things are done,” Ferro said. “I like to consider myself an expert, but every case I learn something new.”
In all of his experiences handling divorce cases, Ferro has come up with three pieces of advice regarding the use of electronic devices. First, he said, when someone is approaching a divorce, get a new computer. Second, get a new, secure, e-mail account. And third, when communicating electronically, always assume someone will read it. “Keep it clean, keep it innocuous,” Ferro said. “Basically, be paranoid.”