The expansion of social media over the past decade has created a seismic shift in the way people communicate, both to one another and about themselves. A recent study by the Pew Research Centerdetermined that 71% of adults online regularly used social media networking websites. Facebook, Instagram and Twitter are incredibly rich sources of information.
When you litigate a family law matter, or any lawsuit, the parties engage in what is called “discovery”. Discovery is the process by which parties learn about one another’s case and obtain the evidence in the case. During the course of discovery you may be asked under oath about your social media posting,s and you may be compelled to provide access to your social media profiles. Less frequent, but on the rise, are demands for access to cell phones, laptops and other electronic devices. Think about your social media postings and texts. Is there anything you wouldn't want a court to see?
As few as five years ago it was mostly just e-mails, texts, pornography use and adultery you needed to be concerned about coming to light. Now, it is everything, because so much of our lives are memorialized in social media and recorded on our electronic devices. Much of the information you give away you are not even aware of—such as your presence at a particular place and time, including pretty extensive documenting of exactly where your phone has traveled.
Your Facebook page, Instagram account, tweets, and the like reflect who you are: your values and priorities, religious and political beliefs, interests and thoughts. The photos, tweets, memes and comments give an impression of your character and what is important to you. Most people like to post pictures of themselves having fun; they like to make irreverent, sarcastic and often caustic remarks on social media. Most of it they post for “friends” who already know them. As you post, you probably assume that your readers will take your post in the context of their long experience with you, or even hope that your post will give newer acquaintances a certain impression of you.
If you are like most people, you probably haven't viewed your social media postings through the lens of how a judge might view those postings when determining your role in the demise of your marriage, or your fitness as a parent. If your spouse claims you drink too much and there are multiple photographs of you partying on Facebook and Instagram, that will lend significant credibility to the claims. If your spouse complains you neglect the children and you have joked on social media about what a drag your parenting obligations are, your posts will give credence to those claims. If confronted by a judge with your own words you might protest, “I was only kidding,” or “that’s out of context,” but that may not be persuasive in the harsh light of a courtroom.
Another pitfall of social media in family law cases involves claims regarding lifestyle and income. Let's say you are self-employed and have told your spouse you cannot afford the alimony or child support they are demanding. If your social media posts are full of pictures of you on vacation or with expensive new "toys," your protests of poverty are going to ring hollow. A judge might reason that if you are lying about your income, you may be lying about other things as well. Your credibility could be irreparably damaged.
Have you checked the privacy and location settings on your phone? Or your child’s phone? Most likely your every movement is being tracked by your phone. Your cellular account or your child’s may have been opened and managed by your spouse, who may therefore have access to your whereabouts through your phone even after you separate. Even if not, a forensic examination of your phone will likely reveal far more than you would like about where you have been, when and for how long.
Another vast source of personal information may be your shopping history on Amazon. Many people shop extensively on Amazon, and there may be a wealth of information regarding personal habits included in your or your spouse’s shopping history. I had a case recently where we used EBay records to document the existence and value of a massive memorabilia collection and my client was able to get a reasonable compensation for her marital share of a collection her spouse denied having had.
Whether it’s bank records, cell phone bills, text messages, voice messages, email or just what you are watching on Netflix, I often encounter spouses who don’t change passwords, and their estranged spouse continues to access their information on a regular basis. In addition to the potential serious litigation perils this creates, it is invasive and unsettling to have your estranged or former spouse knowing the intimate details of your life.
As the use of social media sites and dependence on electronic devices continues to increase, the potential evidence available to litigators has expanded exponentially. Social media information is now routinely requested and reviewed in family law litigation. It is an incredibly fruitful area for the exposure of personal information. Courts can and do compel people in family law cases to produce or provide access to their social media and electronic devices.
On numerous occasions I have successfully contradicted a witness’s testimony through the use of their own social media, and it is devastating to their credibility and case.
The best thing to do during family law litigation is to avoid social media altogether. People who are involved in a divorce or custody case are often tempted to delete their accounts and attempt to scrub their online lives, but if litigation has begun it is too late; these actions may be considered destruction of evidence and can lead to serious repercussions.
To date, I have not had a single client who wanted to share their Facebook or Instagram postings with a court, or appreciated being tracked by an estranged spouse. So, think carefully about what information you are sharing, what evidence you are creating, and what a judge might think about you and your image on social media. If you need more advice about dealing with social media issues during your divorce, support or custody case, we can help, and invite you to contact our law office.
© 2020 Joehl Law