Uber and similar tracking records are being found more frequently in divorce matters—in some select locations—but New Yorkers may have a lot less to worry about when it comes to taking an Uber ride to visit a lover. That’s because New York has a no-fault divorce law, and judges “aren’t going to spend a lot of time on it” in courtrooms, Steven Mandel, a veteran New York divorce attorney, told Legaltech News.
Mandel, who has also been co-chairman of the matrimonial section of the New York County Bar Association, said that if a New York judge is presented with such evidence, she or he simply might tell an attorney, “Move on. Get to the heart of the matter.”
Based on his experience, Mandel said New Yorkers are using such data “not so much to get leverage on divorce action, but to confirm or to convince themselves” that a spouse is being “unfaithful.”
“There’s an emotional component to it,” he explained. “It will vindicate them.”
But that doesn’t mean that the data will have much impact in court. When it comes to the distribution of assets, Mandel said that tracking data won’t make much of a difference. Further, using such data may even lessen the chances for parties to settle.
However, there are times when social media does come up in divorce matters, and such information can help to track someone or confirm suspicions.
For instance, John Slowiaczek, president of the American Academy of Matrimonial Lawyers, said, “I find that many times this kind of information is being gathered and used by a spouse who is determining whether or not they should move forward with a divorce. It can often support some long-held suspicions.”
Moreover, Slowiaczek said Uber “can also provide valuable information for child custody cases,” and “most people understand what a powerful tracking device their phone can be.”
“This is because people will often use the service when they are at a bar or a club, and this can provide some key information to the other spouse, especially if there are allegations of substance abuse,” he explained.
Divorce attorneys said they first saw such data generated by EZ-Pass. It was followed by data from social media, most notably from Facebook, which Mandel called “a boom to the divorce lawyers’ practice.” Often, that relates to someone posting photos or text on Facebook. Other sources of data may be text messages or emails, Mandel said.
“We now have an enormous and increasing segment of the population which allows their movements to be tracked in ways that would have been next to impossible just a few years ago,” Seth Weinberg, an attorney at Weinberg Zareh Malkin Price and a lecturer at Columbia Law School, said. “As long as judges and juries find the information stored by these applications to be reliable, they will probably become increasingly useful in resolving disputes and serving as evidence in contested cases.”
“Since legislatures tend to need time to react to developing technologies, there will likely be a long period during which this type of information will be freely allowable subject only to existing privacy laws,” he added.
Moreover, Jennifer Kouzi, an attorney at Kaminer, Kouzi & Associates, further explained that Uber “is just another digital footprint of which people going through divorce should be aware.”
“If a spouse claims to be doing one thing and his or her Uber or time-stamped cab ride proves otherwise at the time of discovery, it is problematic,” Kouzi said. “Uber records are just another tool in the arsenal, just like viewing EZ-Pass records to see when someone goes over a bridge or reviewing bank records to see an ATM withdrawal made at a casino on a night when the parent swore he or she was home caring for the child during his or her parenting time.”
Kouzi said some spouses even had “keystroke software installed so that they can literally see everything their spouse has written, even without access to their email.”
“There are apps on phones which allow your spouse to track your whereabouts. I have had clients tell me they had to turn their phone completely off 10 blocks from my office so that their spouse did not know they were at an attorney’s office,” she added.
Michael Stutman, an attorney at Stutman Stutman & Lichtenstein in Manhattan, and past president of the New York State Chapter of the American Academy of Matrimonial Lawyers, said, “Most people have become far more sophisticated about securing information that will tell them exactly where someone else had been. It is now as difficult to hide yourself as it had been to hide your money.”
“I don’t find this trend worrisome,” Stutman said. “People do have many opportunities to protect their own privacy, if they decide not to take the necessary precautions, they do it at their own peril in today’s world.”