Social media can be a gold mine of evidence for a family law attorney because many people are just not careful about what they post online. Cheating spouses get caught on Facebook, incriminating photos end up on Instagram, Twitter posts demonstrate an individual's morals and bad habits, and Foursquare and Yelp check-ins inform others of our whereabouts. Not only can the implications of our social media footprints increase the risk of unrest in a marriage, family law attorneys are turning to the trail of evidence left on social media channels in divorce and child custody cases.
Most people use social media. Many family law attorneys are now advising their clients to stop using social channels in an effort curb the amount of evidence left online. Some have gone as far as to suggest modifying privacy settings and implementing self-censorship in hopes of limiting what opposing counselors can use in court. The plethora of information in the public domain of the online superhighway can serve as a goody bag for attorneys for the opposing side. Statuses, tags and photos have the ability to reveal a person's state of mind, intent, proof of communication, evidence of times and places that events occurred and proof of actions.
Although the most common way to gather evidence on social media is that someone sees it and prints it, many recent appellate decisions (albeit in states other than Arizona) have completely opened social media to the discovery process. Courts have ruled that there is no reasonable expectation of privacy in social media and parties have had to turn over everything in their social media accounts.
When it comes to finances, social media can destroy an individual's chance of saving money. Divorcing spouses do not realize that when they post pictures of their brand new cars, luxury trips and elegant dinners they can be used against them as evidence when they claim that they are unable to pay alimony, or can't possibly afford to pay a level of child support. LinkedIn is another web site that may be detrimental to someone attempting to get out of certain payments, because it contains open information on a divorcing party's income, bonuses and other employment information.
The following guidelines will help prevent falling into the social media evidence trap.
1. Do not use social media. If you must use social media, proceed to the other guidelines.
2. Place your settings on private. You don’t want just anyone looking at your information anyway.
3. Do not have the opposing party or their friends and family on your friend or contact list. For some reason, people are always shocked when their in-laws print the pictures of them doing stupid things.
4. Do not brag online about doing or post pictures of stupid things that the other side will use against you. This includes (but I am sure it is not limited to): using illegal drugs, abusing alcohol, affiliating with gangs (I had one opposing party who posted multiple pictures of himself and his gang flashing gang signs), criminal activity, endangering your children, and generally showing bad judgment. You should not do these things in the first place, but if you must do one or more of them, don’t make a public record of it.
5. Do not badmouth the opposing party, the opposing party’s family, the opposing party’s friends, any former spouse, any former girlfriend or boyfriend, any parent of any of your children, or anyone else that you know. This includes posting threats. Yes, people have actually done that in my family law cases.
6. Don’t be a jerk. A large part of a family law case is presenting yourself as reasonable. Do not post evidence in public that you are not reasonable.
7. Do not post trashy things. Posting profanity-laced status updates about various frustrations, filthy jokes, and explicit pictures may or may not hurt your particular case, but they certainly will not help it.
8. Keep most private details of your life private. Posts about how much you love your children, or how much fun you had with your children during a particular activity are fine. Posting about every minute detail of your lives can lead to posting something that you later wish you did not post.
9. Do not focus on free speech. One litigant had remarried and his current spouse posted foul, horrible things about the opposing party several times every day. The litigant took the position that his wife is entitled to free speech and can post whatever she wants. He lost his case.
10. Do not post details about your case.
11. Before posting something, ask yourself if you would mind explaining it to a judge later. If the answer is yes, don’t post it.
If you follow the above guidelines you will avoid becoming your own worst enemy in family court.