Just Say No to Digital Media Use Before, During and After Your Divorce

July 1, 2015

In the digital age, anything you do, say or post online can and may be used against you in a court of law. In several types of litigation, particularly criminal, personal injury and employment-related matters, social media is routinely sought as evidence.

Digital media evidence, including words and images, is also routinely sought and used in divorce cases. A survey of the American Academy of Matrimonial Lawyers found that 80% of its lawyers already used Facebook data in divorce cases, and 66 percent considered Facebook the “unrivaled leader for online divorce evidence.” Some lawyers now consider investigating relevant social media sites as a matter of professional competence.

At our law firm, we now advise all divorcing clients to shut down their social sites entirely for a period of time, or to at least use privacy settings to limit those who see their posts. As you can imagine, that is difficult advice for clients to hear and follow. But for so many reasons, it is critical.

We have seen marriages end based on cell phone calls made from compromising places or situations. Many a spouse has found his or her allegedly faithful husband or wife profiled or pictured on the numerous online dating sites. There are custody cases where the custody seeker’s picture has been posted online appearing drunk and disorderly, where the allegedly “broke” spouse has been tagged in luxury destinations, and where the “down-and-out” payor’s profile has been updated with a recent job promotion.

When counseling our clients, we use variations of the following persuasions to encourage them to follow our digital media advice.

On Facebook, be prepared to “face” your past. Family law attorneys have used Facebook to find damaging information regarding support and custody, and to highlight our own client’s attributes or the opponent’s flaws. Among easy Facebook discoveries are “significant others,” hidden assets, and certain lifestyle habits.

LinkedIn, limit what you put in your profile. If you are on LinkedIn, be careful how you spin your online profile. Exaggerated or misleading credentials may not only be unlawful but can come back to haunt you in a courtroom when a judge is deciding child support, alimony, or money and property division.

E-mails are an attorney, judge and media’s best friend. It’s not unusual for a judge to require copies of e-mails as evidence. So it goes without saying: People should never write anything in an e-mail that they would not like their boss, a judge, or even the media to read. Picture the email in the local newspaper, we tell them, or in a Power Point in a courtroom, then lift that finger off the “send” button.

Texting may be easy and efficient but can be detrimental to your legal health. People have the misconception that texts are ultra-private, but, just like e-mails, they are not.Clients in family law cases take pictures of texts all the time and use them as exhibits on custody, support, and divorce/paternity cases. Records can also be subpoenaed.

Be careful what you Tweet. There is no better place to find out what someone is thinking, or where someone is eating, vacationing, and spending money than on Twitter, so if you want privacy and confidentiality, Twitter should be off limits. Even though Twitter’s content is limited to 140 characters, people still post pictures and information that can be damaging. Lawyers can and do use this information to build entire cases around what a few words or a single Vine video have revealed.

The bottom line: be extremely careful about what you publish on your social networks before, during and after a divorce – if you publish at all. Remember the Golden Rule: if you can’t post something nice about someone, don’t post anything. Then there’s the Legal Golden Rule: never post anything that you would not like to see “zoomed” as a large-screen sized Exhibit in court.

Allen, Glassman & Schatz, LLC