Social media such as Facebook, Twitter, Instagram, and Reddit can be a wealth of information for attorneys in family law and other areas of law because people post so much of their lives online and often have online tantrums. Something as seemingly innocent as a check-in on Foursquare can turn into incriminating evidence. Your social media activity can be a trail of evidence that the other party can use against you in family court, particularly when legal decision-making (custody) and parenting time are issues. It can also hurt you in other types of cases, such as bankruptcy or collection matters.
Information that people post on social media can be evidence of state of mind, intent, communication, times and places of activities, employment, actions, contempt for the other parent, child alienation, and many other issues. In one case, my client found on the other parent’s Facebook page a picture with a caption bragging about hiding assets during the divorce; pictures and check-ins at various bars, restaurants, sporting events, and entertainment venues while the other parent claimed to have no money; disparaging remarks about the client; pictures of the other parent’s new motorcycle which he had denied owning; and pictures of the other parent with various items of jewelry which he denied owning. In several collections cases, I have found the opposing party’s place of employment on Facebook. I have often found evidence on social media that directly contradicts what opposing parties claim in court.
I usually receive this sort of evidence because someone saw it and printed it. However, social media is now open to the discovery process in many states (but not Arizona - yet). This means that upon the request of the other party you must print your social media, such as your Facebook time line, and give it to the other party.
Here are some guidelines to help you prevent someone from using your social media against you in court.
1. Do not use social media. This is the only way to be certain that no one will use your social media against you. If you must use social media, use the other guidelines.
2. Do not post anything that you do not want a judge to see. If you don’t want the judge to see it, don’t post it.
3. Be honest. If you do not lie in your legal proceeding, you will not have to worry about getting caught because of your social media use. If you do not lie on social media, for example trying to impress someone by exaggerating your affluence, you will not need to worry about it coming back to haunt you in court.
4. Set your accounts to private. This is a good idea regardless of legal proceedings, but it also prevents people from trolling your social media looking for incriminating evidence.
5. Do not have the opposing party or their friends and family on your friend or contact list. These are the most likely people to look for something incriminating on your page. This seems obvious, but this is usually how the other party gets the information.
6. Do not post pictures or write about doing things that you should not do, such as illegal drug use, alcohol abuse, gang activity (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. Do not make a public record of things that you should not do in the first place.
7. Do not disparage 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. People have actually done this and hurt their family law case.
8. Be nice. A large part of a family law case is presenting yourself as reasonable. Do not post evidence in public that you are not reasonable. Being mean online may or may not hurt you in court, but it certainly will not help you.
9. Do not post trashy things. This includes profanity-laced status updates about various frustrations, filthy jokes, explicit pictures, anything racist, and the like. Again, this may or may not hurt you, but it certainly will not help you.
10. 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. Posts about every detail of your life can lead you to post something that you later wish you did not post.
11. Do not post details about your case.
12. Free speech is not the issue. Your focus should be on winning your case. This includes not saying or posting whatever you want to say or post. You may have every right to say something, but it will still hurt your case. 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. Being right is not worth losing your children.