Including cell tower location data, social media and other web-based "evidence" into the standard discovery process in family law is quickly trending in the United States as the most cost-and-time efficient method for proving certain aspects of various domestic relations claims. Most recently, the use of cell tower location data to demonstrate some of the key elements of a cohabitation claim have been successfully leveraged to have alimony modified or permanently terminated. More and more successful results are being achieved, as tech-savvy attorneys are using the discovery process to legitimately obtain this information, revealing for the first time, completely objective data documenting the location of a person's cell phone device, and logically concluding the whereabouts of the individual him/herself. This information can stand alone, or, bolster the testimony of a private investigator, validate other witness testimony and undermine the credibility of opposing parties. Attorneys paving the ground in the tech arena are encountering different experiences in different jurisdictions. Some judges are intrigued by the ingenuity and use of cutting-edge technology in their courtrooms, while others remain skeptical, hoping to look to another court that embraced and adopted the trend. Unfortunately, the number of actual cases is underreported because so many of these claims are resolved in pretrial settlement conferences, when the defendant is often forced to balance the weight of the evidence, witness credibility and a potential perjury and retroactive alimony claims. Accordingly, below is feedback from a few colleagues and their clients, highlighting their experiences and results.
In a recent California case, Attorney Jeremy M. used cell phone geo-locational data as "an integral tool in obtaining an agreement to terminate (spousal) support" in a strenuously-contested termination of alimony claim. He explained, "Opposing parties often rely on the substantial obstacle presented by having to prove cohabitation in a spousal support case. I found the Court receptive to the ground-breaking legal argument and invited the opportunity to review the highly technical but very persuasive evidence." His client commented, "The cell tower location data was definitely the "silver bullet," though my ex deployed every tactic at her disposal to dodge it: objecting to access to her phone records on privacy grounds (overruled); obstructing the discovery process (for which she ultimately was reprimanded by the court); and ultimately relying on a defense alleging that "geolocation data is junk science" (also overruled.)" He used the information to his client's advantage by questioning the ex-wife during deposition, comparing her testimony line-by-line against the data recorded in the cell tower location log. This, coupled with the piles of evidence contained in bank records, private investigator reports, photographs and videotape, painted a compelling picture of a case ripe for settlement or dismissal.
In a recent South Florida case, Attorney Paul L., used cell tower location data to minimize the expenses related to building his client's case by reducing the need for hours, days and weeks of surveillance video. He further commented, "As a result of cell tower location data, I have been able to convincingly illustrate the element of cohabitation, as is required under Florida's supportive relationship statute, and have avoided the significant expense of engaging a private investigator."
In Virginia, another similar story is shared by "Joe," who after hiring a private investigator to confirm what he already knew to be true, used cell tower location data to bolster the report. Joe explained, "A private investigator confirmed that she was living with her boyfriend, who had also left his wife and children. She told our children to lie about her living arrangements, and told them that if they told the truth that I would take them away and stop giving her money. In my jurisdiction, cohabitation needed to be shown for a period of at least one year before alimony could be terminated. I used cell tower location data to fill-in the gaps in my private investigator's report, providing a full 24/7/365 picture of my ex-wife's living arrangements with her boyfriend. Our motion to terminate alimony was met with strenuous objection, until the evidence was presented at mediation. Final result? Alimony terminated."
The common denominator to these stories is the pairing of the right attorney with the right professionals to help shape your legal arguments and strategies enabling you to present your strongest case. If you are thinking about pursuing a claim for termination of alimony based on allegations of cohabitation, look for the following characteristics when building your professional team:
1. An outside-of-the-box thinker;
2. Tech-savvy enough to understand the benefits of leveraging technology, and smart enough to know where to find the experts; and
3. Unafraid of challenges and creating new precedents.