As an Arizona State Bar Certified Specialist in family law matters in Arizona, I have been asked many times about sensitive photos or videos of intimate acts or nudity.  While each case is different, here is some basic information to consider.

Scenario 1:  Photos of Couple

Many couples have, during the good times, photographed or videoed themselves or their partner or both together in intimate ways.  While such videos or photographs may be seen by the parties as appropriate and acceptable at the time the videos or photographs are taken, these photographs and videos can become very awkward during and after a divorce.

First, follow the Golden Rule.  Delete photos of others, as you would want them to delete photos of you.  As part of your “moving forward to a new life” delete such intimate photos or videos of your former spouse or partner.  If you are aware of photos or videos your partner may have, you can ask politely that they also delete them.

Second, never store intimate photos or videos online, or post to any form of social media.  What gets posted online or social media, seems to stay online or social media.  Protect yourself and your partner or former partner, and keep personal control over such items.

Third, while there may be no real way to know for sure if such photos or videos have been deleted, please understand that publishing or posting or sharing photos of an un-consenting ex-spouse or partner could be a criminal matter, and could result in an Order of Protection and other legal action being taken against you.  It is not worth it.

Revenge Porn is a Class 4 felony, punishable by up to 1.5 years in prison and a fine up to $150,000 and could in some cases require registration as a sexual offender.  Specifically, A. R. S. § 13-1425 makes it a criminal offense to intentionally disclose the image of an identifiable person in a state of nudity or engaged in sexual activity, when the person has an expectation of privacy, with the intent to harm, harass, intimidate, threaten, or coerce the depicted person.”

Incidentally, the “threat” to disclose such a photo or video may still be a misdemeanor, so do not even make the threat.   Again, it is not worth it.

other legal action being taken against you.  It is not worth it.

Scenario 2: Photos of Infidelity

As a divorce attorney, I am often offered photographs proving the infidelity of the other spouse or partner.  Before you send such photos to your attorney, call and speak with your attorney to see if they are necessary and if they will be helpful to your case.

Arizona is a “no fault divorce state.”  In other words, even if we prove that your spouse committed infidelity, the Judge should not provide you with one penny more of the assets, or one penny more in spousal support or child support.

Infidelity may be relevant in court if you and your attorney are trying to prove marital waste, for example your spouse took a lavish vacation with their new significant other, and spent community property money on the vacation, jewels, furs, etc.

With regard to parenting, Courts generally will not look at the sexual or relationship status of the other parent when considering each parent’s fitness to parent your child or children.  Courts will generally only get involved in sexual improprieties if such improprieties involve the children or are in full display in front of the children.     Should this arise, contact your divorce attorney to further discuss the relevance, and how best to prove the situation.

Scenario 3: Pornography

A third scenario that occurs in divorce cases is one spouse finds the other spouse’s stash of pornography.

As stated above, Arizona is a “no -fault divorce state.”  Whether you agree morally, pornography is legal.  The existence of pornography generally does not have any relevance to the Judge who will decide your case.

However, in cases where the child or children have been exposed to the pornography, this very quickly becomes an issue for the Court in determining the parental fitness of the parent who intentionally or unintentionally (carelessly, lack of appropriate passwords, lack of supervision) allowed minor children to access pornography.

Before you send your attorney pornography, even if you consider it evidence, contact your attorney to decide if it is relevant and necessary to your case.  Bluntly, your attorney may not want to see the pornography stash you just stumbled across.

Scenario 4: Child Pornography

If you stumble upon child pornography on your spouse’s or partner’s computer, DO  NOT SAVE THIS TO YOUR OWN DEVICE, and whatever you do DO NOT SEND THIS TO YOUR ATTORNEY.

Federal law prohibits the possession of child pornography.  There are no exceptions for “I thought my attorney needed this as evidence in my divorce case.”   If you put your partner’s child pornography on your own device, you are now committing a felony.  If you email such child pornography to your divorce attorney, he or she is now committing a felony.

If you do find child pornography on your spouse’s or partner’s computer, contact your attorney to discuss the best approach, including how to appropriately contact the police and have an investigation occur.

 

Be careful what photos and videos you take, store, and share.  If you have determined that you need experienced legal representation, please call 480 733-6800 and ask to speak with Douglas C. Gardner, or visit our website at:

https://www.davismiles.com/practice-areas/family-law/