You probably heard about the recent release of a massive database of information about Ashley Madison users by a hacktivist group aimed at challenging Ashley Madison’s business model of creating opportunities for spouses to cheat. If you are an Ashley Madison user then this news might be alarming. Many people, including some divorce attorneys, await a tidal wave of divorces the release will spur.
As a Texas divorce attorney I do not see a significant impact on the number of divorces. So let’s talk a little about why the Ashley Madison hack may not be such a big deal.
What was released in the Ashley Madison hack?
“The Impact Team” accessed information from The Avid Life (owners of Ashley Madison and ashleymadison.com) and procured approximately 10 GB of data on Ashley Madison customers that includes names, addresses, email addresses and credit card information. The information went into the shadier parts of the internet and has bubbled up through slightly less shady avenues. The information is in dump files from server databases likely from the Ashley Madison servers. The Avid Life confirmed the breach. At least a few people confirmed that the information includes their own accurate data.
Accessing the files requires knowing how to maneuver the dark web/deep web or finding the files on a torrent server and then loading the dump files into the right type of database format. Most people are unfamiliar with the dark web (or deep web, whichever you care to call it) although downloading torrents isn’t too unusual to anybody who has illegally downloaded a movie or music in the past ten years.
However, loading the dump files into databases requires software or an operating system that most people do not have. There are some websites releasing some of the data and most of the easily available information seems to connect to email addresses. One would think searching the email addresses would be the least accurate form of verifying one’s account with Ashley Madison because it’s so easy to set up a new email account for free but lots of people apparently used their normal business or personal email addresses.
Can the information from the Ashley Madison hack be used in a divorce in Texas?
Probably not directly. There are several laws, both state and federal, that make it illegal to unlawfully gain access to electronic information and to further use that information. Admitting in court that one has possession of unlawfully acquired information may not be the wisest of decisions. It may be a matter of time before a legitimate site publishes all of the information and that may dissolve the legal problems for using the information but it does not clear the legal hurdle of introducing the information in court. For evidence to be admissible in court the party seeking to introduce the evidence must authenticate the evidence–prove it is what it says it is. There will be little good argument to be made that a spouse in a divorce can prove the information supposedly gleamed from the hacked data really came from Ashley Madison.
However, if one’s information is identified as part of the hack then it should be easy to find other evidence that can be authenticated. This may include browser search history, credit card bills and emails. The hacked information may be the smoke that leads back to the fire.
Will the Ashley Madison hack cause a lot of divorces in Texas?
Probably not. The lack of easy access to the data will make it difficult for most people to know if their spouse has an account. If that changes and the information becomes easily accessible then certainly it may cause a small number of divorces. Some divorce attorneys think the day the information becomes easily accessible will be the jackpot. Just like slot machines, the odds are not favorable. There are approximately forty million Ashley Madison users. (It has been suggested by some that a large number of female accounts are fake profiles set up to entice men to join the site but I cannot confirm whether that is true or, if it is true, the number of fake profiles. I merely point this out to explain why I state the user count as “estimated.”)
Assuming there are that many users, you then cut down the number for accounts not caught in the hack. Cut out any accounts of single people (likely men) just looking for an easy, no strings attached hookup. You also cut any accounts using a sufficient amount of information that makes it difficult to connect it to the owner. Further cut it down by the number of people who will not search the hacked data. Then keep cutting down to the number of spouses who will decide to confront their spouse and in those cases, the marriages that won’t divorce.
The number you have left that will go to divorce will undoubtedly be far smaller. Perhaps in the single digit millions or less. Let’s not overlook that several million divorces is a large addition to the number of divorces granted each year. (Approximately one million annually.) It is a lot but it’s not forty million. I am not confident that the data will become easily accessible to the majority of the population. Without broad access the impact to the Ashley Madison hack will likely be nil.
Discovering a spouse on Ashley Madison probably does not take a happy, otherwise healthy marriage into divorce. Divorces spurred by this discovery are likely from marriages already approaching the ledge. If anything, the Ashley Madison hack may accelerate the divorce in an already unhappy marriage.
Will the Ashley Madison hack play a big role in a divorce in Texas?
Again, probably not. Under the Texas Family Code infidelity is grounds for divorce but most divorces are no-fault divorces. That means the judge often won’t care whether there was cheating or an attempt to cheat. Some judges in Texas, including here in Tarrant County, treat infidelity as an issue in the divorce. The majority of divorce judges do not care. Pleading infidelity as grounds for divorce often carries little value.
Typically infidelity only comes into play in the property division and likely only adjusts the division slightly. If you spend thousands, or tens of thousands, to prove infidelity then you may end up with a net loss. Some judges in Texas consider infidelity as evidence of selfishness and consider it for custody determinations and property divisions. Even when a divorce is filed into these courts the infidelity is not a kill shot to the other side. Infidelity is highly unlikely to result in the parent never seeing the children or losing everything they own. It doesn’t mean it can’t be useful. However, adding value to the side cheated on often requires a very strategic use of that information.