What are the Signs of Infidelity?

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 ten 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 website 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 ten years ago how often I saw that in a case, I would say not often,” said Ferro, who practices law in New Canaan, Connecticut with Marvin, Ferro & Barndollar, L.L.C. “If you asked me now, I would say often. It’s rampant.”

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.”

But 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 websites. 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 experience 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.”

ELECTRONIC COMMUNICATION

Most clients come in carrying proof to their early meetings with Kamilah Clark, an attorney with Belli, Weil, Grozbean and Davis, LLP, in Atlanta. Very often, her clients come in with copies of e-mails. “It’s amazing the amount of correspondence people send to each other over e-mail,” Clark said. “You would think people would be more discreet.”

The process usually starts at home. The client suspects wrongdoing and does some digging. “You don’t usually go through someone’s e-mails unless you suspect something is going on,” Clark said.

Once they find something, the clients come to the law offices to find out what to do next. The clients’ suspicions and the preliminary proof set Clark on the trail. Finding more proof may be as easy as running searches on the Internet or asking the client to bring in cell phone documents. Sometimes it progresses to hiring a company to inspect hard drives.

Clark said that most of the cases that come across her desk use some sort of electronic information-gathering. But even with her experience, she can still be surprised. For instance, she is amazed at the number of times she finds clients’ spouses with listings on online dating sites. “You would think that people would not put themselves on there when they are married,” Clark said, “but people do that all the time.”

Client’s suspicions are also just the first step for Lynne Z. Gold-Bikin, divorce attorney and managing partner of the family law practice group at Wolf, Block, Schorr and Solis-Cohen LLP in Philadelphia. She said people use electronic methods to investigate their partners for a reason. “You’re looking to see why they are lying to you,” Gold-Bikin said.

One of her clients figured it out using the EZ Pass on the car, which is a device that automatically pays tolls as cars drive through a toll both. The client found that the bills from the EZ Pass transponder showed that the client’s husband was not where he said we would be. “You’ll see where he or she has been when they claim they are in a meeting in Philadelphia and they go across the bridge to see the girlfriend in New Jersey,” Gold-Bikin said.

However, Gold-Bikin explains, she doesn’t subpoena the transponder records. Instead, if the clients live in the same home and the bills arrive, they can take them. In another case, one of Gold-Bikin’s clients suspected his wife of having an affair, so he installed spyware on the computer. The program made copies of the e-mails after the wife sent the messages. That gave him proof that his wife was not only having an affair with his best friend, but they were posting invitations online for swinging couples to join them.

Gold-Bikin cautions about the use of spyware. Depending on the state, it may be illegal to use it, and it is not likely it can be used in court. But it will show what spouses are doing when they are using their computers. An answer more complicated than spyware on the electronic surveillance spectrum is inspecting or even cloning hard drives.

Mary Johanna McCurley, a Dallas family law attorney with McCurley, Orsinger, McCurley, Nelson & Downing said this is becoming more common. “We’re actually going in and getting people’s hard drives,” said McCurley, who was also a past chair of the Family Law Section of the State Bar of Texas. “So even if they have deleted e-mails, they can pull them up, if they know what they are doing.”

She said this cottage industry is becoming a useful part of finding information. There are several reasons a client might want information about a spouse’s hard drive, but she said one reason crops up commonly. “The biggest one is if they are, or at least having the appearance of, having a relationship with somebody else,” McCurley said.

McCurley said she expects the next advent in electronic information gathering to be some way to save text messages. She said clients can get a small amount of information from cell phone bills, such as who is calling whom when, but until text messages can be salvaged or saved and accessed, there is much more to be found.

MORE INFORMATION AVAILABLE

Using electronic methods has broadened the way attorneys get information for divorce proceedings, said. Jeffrey P. Wasserman, the head of the Shapiro, Blasi, Wasserman & Gora P.A. Family Law Practice Group in Florida. “It’s expanded the way we get evidence,” said Wasserman, who also serves on the Florida Bar Family Law Rules Committee.

And the practice of using electronic methods to find information about spouses is becoming as common as divorce itself, Wasserman said. “I’m seeing it more and more frequently,” Wasserman said. We’re in the age of electronic communication, more than the drum beats and smoke signals of past centuries.”

Although everyone seems to be well versed in the use of cell phones, computers and the like for gathering evidence, Wasserman cautions that there are legalities of which everyone must be aware. The attorneys must understand the wiretapping and electronic copying statutes in their states. The clients collecting information surreptitiously must also understand that in some states, what they are doing is illegal.

For example, Florida is one of 12 states in which it is illegal to record conversations if both parties are not aware of the recording. “Often, a client says they recorded something. I always tell them, ‘Not only do I not want to know about it, I can’t have a copy of it.'”

In situations like the one Wasserman describes, an attorney can be considered legally liable for participating in illegal activity. But generally, Wasserman said, technology has allowed attorneys to find more information in an easier way. For example, instead of waiting weeks for bank records, clients can print them directly from their banking websites. “Clients can get right into private accounts and download everything,” Wasserman said.

TECHNOLOGY MAKES IT EASY

Another attorney echoed the opinion that technology has made it easier to get information for divorce proceedings. Nancy Chemtob, matrimonial lawyer and founding partner of Chemtob Moss Forman & Talbert, LLP, in New York City, said the use of electronic records has completely changed the landscape of matrimonial law. Her clients used to come in with stacks of phone bills or restaurant receipts. “Now it’s something as easy as a spouse sitting down at a computer getting an instant message,” Chemtob said.

She said technology has helped her clients find out their spouses are having extramarital affairs or visiting pornography sites on the Internet. One client found out her husband was homosexual after figuring out that he was surfing gay porn on the Internet. “So now all this information that was private is now public in the marital domain,” Chemtob said.

Her clients are bringing more information as ammunition to the divorce process. That information, if not admissible in court, becomes leverage in negotiations, she said. “Sometimes we don’t admit information, but we have it,” Chemtob said. And knowledge is power.

She said she foresees no end in sight to the ways electronics can be used to collect information. And as mobile phones and apps increase in popularity, it will become increasingly easier to catch a spouse in the act. To Chemtob, the future of the issue is plain. “I think the future of it is: Blackberry-user beware,” she said.

This article was contributed by Michele Bush Kimball. She has a Ph.D. in mass communication with a specialization in media law and has spent almost 15 years in journalism and teaches at American University in Washington, D.C. She recently won a national research award for her work.