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Can the Absence of Data Predicate an Inference of Adultery in a Divorce Case?

Cell phones are one of the best sources for evidence of adultery in a divorce case. People feel safe using their phones—for nearly everything. Text messages, inappropriate images (and evidence of their transmission or receipt), call logs, location data, communication via third-party apps, and more, can contain evidence that supports a claim of adultery.

But what if the evidence is missing—selectively deleted—and not recoverable? Courts can consider such circumstances in a claim of adultery.


In W.D.G. v. K.S.G. (CL-2024-0223), the Alabama Court of Civil Appeals reviewed a trial court’s finding of adultery by the husband based upon the husband contracting HIV (although the wife testified he contracted AIDS) during the marriage and certain evidence introduced regarding his cell phone usage. Specifically, the court found the husband’s testimony about his illness was “totally unbelievable,” and considered the daughter's testimony that she found an explicit image on the husband’s phone and a text message “between the husband and another person…that she understood…to be referencing a meeting between the two.” The wife testified that the husband was secretive about his computer and phone usage and would hide them from her.


The opinion mentions no forensic examination of devices whatsoever. Yet between the illness, the daughter’s testimony of what she saw on the husband’s phone, and the husband’s conduct regarding his computer devices, the appellate court wrote, “Considering the evidence as a whole, the trial court could have determined that the evidence in this case did not lend itself to a platonic explanation but, instead, necessarily implied that the husband had committed adultery.” In arriving at that conclusion, the court distinguished the facts in the present case from precedent cited by the husband that refused to find adultery based solely on social or secretive conduct by the spouse—obviously, inexplicably contracting HIV or AIDS during the message is a huge step toward a finding of adultery.


But suppose an examination of the spouse’s device, in addition to secretive conduct, reveals either evidence of adultery or selective deletion of data? For example, maybe a forensic extraction of the spouse’s phone reveals a pattern of deleted text messages or calls late at night or during the workday. Other evidence from the spouse’s phone or cell phone provider records would likely reveal the other phone number involved in those text message exchanges and whether those messages had included images as attachments. Add to that, maybe artifact indicating connection to the Wi-Fi at a local hotel that cannot be explained? Or location data that cannot be explained? Or traces of deleted apps that facilitate secret communications (yes, even when an app is deleted, traces of it and its use are often left behind)?


The lack of forensic evidence from the husband’s phone, along with secretive conduct regarding the phone in W.D.G. v. K.S.G., could certainly be analogous to selectively deleting communications with a particular person. Such deletion, coupled with other evidence regarding the spouse’s suspicious conduct, could turn even the lack of evidence into support for a claim of adultery.


A timeline, constructed from digital evidence and the spouse’s conduct, could be very revealing.


And as for obtaining access to the spouse’s devices under the rules governing discovery? The Alabama Court of Civil Appeals addressed that in Ex parte Suhy, CL-2023-0017 and -0018 (Apr. 7, 2023).


Consider early preservation demands and requests to image devices—even if the devices are not examined until later, if at all. Once evidence is lost, it may be irrecoverable.


Consider early discovery requests, to flush out what evidence the opposing party resists producing. These should include requests for evidence from devices, social media accounts and cloud accounts. Be explicit in what types of evidence it includes and the form of production—PDFs are generally of poor value in such cases.

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