Five Things that Can Be Used as Evidence of Cheating

Information Posted on Social Media

If you and your spouse are going through a divorce, you should consider how you’d feel about anything and everything you post on social media being blown up on poster boards and shown to a court—and you should make these considerations before posting. Many attorneys advise that their clients post sparingly as there are a lot of things that may seem innocuous but can make you look bad in court. Furthermore, it’s always a good idea to refrain from posting anything at all about your divorce, your ex, or anything that could potentially be related to the aforementioned. If you are having an affair, or your spouse is having an affair, and there’s evidence of that affair on social media, that may be used as evidence in court. Couples going through divorce should also remember that just because a spouse is blocked, doesn’t mean that s/he won’t see what’s been posted on social media. If it’s been posted on social media, and someone else sees it, it can still be used as evidence to prove cheating. If you see something that could be used as evidence, you should take a screenshot immediately. Do not wait until your ex has time to realize they shouldn’t have posted it, or else it could be deleted. Once something has been deleted, you will not be able to retrieve it.

Emails, DMs, Text Messages, Etc.

Emails, direct messages (via social media, WhatsApp, or virtually any other shady third-party messaging applications), and text messages may all be used as evidence to prove that an affair happened. However, just because they can be used to prove an affair doesn’t mean that you have a free pass to go through your spouse’s social media accounts, text messages, direct messages, or emails. It does not matter if you own the device that the account is logged in on, know the password (or are able to guess it), or if you purchased the device your spouse is using. Your spouse has a reasonable expectation of privacy when it comes to their online accounts, just like they have a reasonable expectation of privacy when it comes to the devices they’re in possession of (phones, tablets, computers, etc.)—even if you pay the phone bill/subscription fee, or purchased the device. Since they have a reasonable expectation of privacy, that generally means that you cannot go through their devices or messages without their permission. If you do this, there may be consequences, both civil and criminal, depending on the circumstances.

Bank Statements, Receipts, Order History, and More

You can use bank statements, receipts, and order history to prove infidelity. If, for instance, your spouse is purchasing gifts on Amazon for someone special on that site that rhymes with “only pans”, you may be able to use the order history on Amazon to prove they were cheating. However, if you were to use information obtained from said only pans site, you’d still have to prove that your spouse had an actual physical relationship with the content creator. Buying gifts for an adult content creator would not, by itself, be considered cheating. However, much like the text messages, you can’t access your spouse’s bank statements, order history, etc. unless you have their permission. Your spouse still has a reasonable expectation of privacy that extends to their finances as well. There are exceptions, however. If you and your spouse share a checking account, you would be able to access the checking account as it’s your checking account as well. Similarly, if you and your spouse share an Amazon account, you would be able to access that as well. While it is unadvisable to go through your spouse’s items in hopes of finding paper receipts that would indicate cheating, anything that’s left in the open would be able to be used as evidence. It should be understood that your bank statements and other account history can be subpoenaed.

Letters, Cards, Mementos, etc.

Again, you can’t go through your spouse’s belongings to find these. However, if you stumble upon them due to them being left out in the open, they may be used as evidence in court to prove that your spouse was unfaithful. While you can use letters and cards that were left out in the open, that does not mean that you can open your spouse’s mail. This is true even if they live with you. There can be civil and criminal consequences for opening your spouse’s mail without their consent. Journals are also a common source of information regarding affairs. While they may be used as evidence in court, you cannot just grab your spouse’s journal and begin reading it, as they’d also have a reasonable expectation of privacy regarding their journals. When it comes to a journal or diary, just because it’s left out in public, doesn’t mean that you can read it.

Internet History

You can use your spouse’s internet history to prove infidelity. As previously mentioned, your spouse has a reasonable expectation of privacy when it comes to their computer and their devices. This does mean that you cannot gain unauthorized access to your spouse’s computer and begin going through their internet history. However, if you and your spouse share a computer, or you have a family computer, the internet history on there may be used to prove infidelity. While you can technically call your internet service provider and request your internet history, it is unlikely that your internet service provider will be able to give you the history. Typically, it takes a subpoena to get internet history from the internet service provider. While the internet service provider has only a limited amount of information, the individual websites the cheating party visits may also be subpoenaed in order to give a complete picture of what your internet history looks like.

Is It Worth It?

In most cases, it’s not worth it to go to all the trouble to get evidence to prove that your spouse was unfaithful. In most situations, even if you do have proof that your spouse cheated, the affects the infidelity will have on your case are likely to be marginal at best, and whatever benefits you reap will likely be outweighed by the cost of obtaining the evidence, proving the cheating, etc.