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.
I have a lot of advice on my blog about the law and procedure of family law, but very little about how to get through a divorce in one piece, or at least without hitting the self destruct button on your personal life. Here are six rules for people going through a divorce that I have developed over my years as a divorce lawyer. More rules undoubtedly exist, and perhaps some of these rules can be combined into one rule, but these are the specific things that I see people do to themselves. Finally, as with all rules, they may be a bit like the Pirate Code, according to Captain Barbossa of the Pirates of the Carribean movies: "...more like guidelines than actual rules."
1. Don’t go straight into another serious relationship. Having just failed at one, you are not ready for another. If you have children, this is not the best thing for them. Spend the time that you would spend on a new relationship with your children instead. They need you. If you do not have children, do something else. Just don’t go straight into another relationship.
2. Don’t be overly generous in your divorce. Be reasonable. Reasonable is great. However, many people just give away everything just to be done or because they feel guilty. I guarantee that you will regret this later, and later is too late. Do not make a decision that could haunt you for the rest of your life just because you are tired of the process or feel guilty. I do not mean little things. By all means, let the other spouse have your X-Box if that will get the divorce done. I mean things like making an agreement to pay $3,000 per month in spousal maintenance for five years after a five-year marriage when your gross monthly income is $5,000 (true story). Not only will you regret it, but you will eventually be bitter at your former spouse and yourself over your decision.
3. Don’t smoke. Many former smokers start smoking again during their divorce. Many people start for the first time. As a former smoker, I can tell you that smoking is no good. Don’t destroy your health, breath, taste, smell, and budget (cigarettes are expensive these days) over your divorce. Divorces are hard enough without causing the problems that smoking causes.
4. Don’t drink yourself silly. This is the same sort of advice as "Don’t smoke," but it has an extra tidbit: drinking yourself silly can have legal consequences. You already have enough legal problems without a DUI, disorderly conduct, or any other criminal charge.
5. Go to the gym. Don’t quit the gym just because of your divorce. You will regret it. If you don’t already go to the gym, this is a good time to start. It doesn’t necessarily have to be the gym. It can be any activity that both keeps you occupied for a while and gets you some exercise.
6. Don’t talk endlessly about your divorce. Everyone has had that friend or acquaintance who constantly complains bitterly about his or her divorce and former spouse. When you do the same thing, you sound just like that person. No one wants to hear it and fewer people will want to be around you if you constantly complain about it. Some people will go out on a first date and spend the whole time complaining about the ex. Others will never stop talking about it at work. None of these things will make your life better. Talk to a counsel instead.
Hopefully, you will never need this advice, but if you ever do, it will help you avoid the same mistakes that most people make during and after their divorce.
Over the years I have seen many ways for people to ruin their divorce case. I know that I have not come close to seeing them all, but I have seen several ways that people hurt themselves in their divorce. Some ways are more common than others. The following list is some of the more common ways that people hurt themselves in family court.
Lie to your lawyer or withhold information from your lawyer. Your lawyer’s advice, analysis, and strategy depends on what you tell him. If, for example, he proceeds under the assumption that you have never used illegal drugs because you lied to him about it, the family court consequences of your drug use will probably go from bad to worse. If you get caught lying about anything, the judge will never believe anything else you say. Credibility is a very important factor in any contested family law case. Furthermore, the judge will most likely not be upset with your lawyer, he or she will be upset with you.
Miss court hearings. This actually happens once in a while. People usually do this because they assume the court will continue the hearing or because they do not think that they have to attend. Sometimes, people just do not respect our legal system. Whatever the reason, the consequences can be disastrous. Never assume that the court will postpone a hearing or that you do not have to attend a hearing and always have enough respect to at least show up.
Don't cooperate with your lawyer. Your lawyer asks for things for a reason. Missing deadlines can have bad consequences, such as the court refusing to review your evidence. Your failure to provide information to your lawyer may result in his inability to present a strong case on your behalf. Some people think that when they hire a lawyer they no longer have to do anything about their case. Nothing could be further from the truth.
Don’t hire a lawyer. Some people think that they don’t need a lawyer and then cannot believe that they got a bad result. Next, they seek a lawyer to "fix" the result. Usually, it is too late to do much (if anything). Just as often, an experienced lawyer could have prevented the bad result. Lawyers are familiar with the individual judges, know how to get things done in family court, know the potential pitfalls, have the knowledge to think things all the way through, and can give advice and make decisions that they did not base on the emotions that their clients feel during a divorce.
Ignore your lawyer's advice or don’t take it. Why would someone hire a lawyer (and pay them a lot of money) and then ignore the advice they that they bought? An experienced lawyer gives good advice because he or she has built that advice and knowledge with practical experience. Sometimes people opt to listen to friends or family instead of their lawyer. Sometimes, this badly hurts their case. Sometimes, ignoring your lawyer’s advice bears no ill consequences, but this does not mean that the lawyer was wrong. It really means that they took a risk and got lucky. However, as the old saying goes, if you keep rolling the dice sooner or later they’re going to come up snake eyes.
Alienate your lawyer. Ways to alienate your lawyer include not paying your bill, abusing your lawyer, abusing your lawyer’s staff (this is the one thing that I never tolerate from a client), lie to your lawyer, threatening your lawyer, and doing many of the other things on this list. Alienating your lawyer will usually not result in anything bad for you. No matter how much a lawyer dislikes the client, most lawyers will still do a good, professional job for the client. However, lawyers are human and you can never tell how a lawyer’s reaction will affect the lawyer’s work. Also, if you alienate your lawyer enough, for example by persistently refusing to pay for services or continually abusing staff, the lawyer may withdraw from representation.
Be unreasonable. Three-quarters of getting what you want in family court is being reasonable. Being unreasonable damages your credibility, angers the judge, and subjects you to monetary sanctions. Focusing on your anger at the other parent, for example, will tell the judge that your focus is not your children’s best interest. It will also badly damage your credibility. Also, you will obviously not get what you want.
Look for the cheapest lawyer. You do not always get what you pay for. Personally, I think that some of the high-priced lawyers in the Phoenix area are not worth half what they charge their clients. However, there is still something to this old saying. If you hire a lawyer who accepts a ridiculously low fee, that lawyer will probably do the minimal amount of work to avoid malpractice.
If you avoid these pitfalls and use common sense, you have a much better chance of success in family court.
Families face many changes during a divorce and one of the biggest changes is the time they spend during the holidays. They will most likely no longer spend time together with the entire family (i.e., with both parents) and many of their holiday traditions will never be the same. Common problems include parents who are unable or unwilling to make an agreement as to how the children will spend their time during the holidays, poor behavior by one or both parents, travel plans, lack of communication between the parents, and the court’s availability (or lack thereof) to solve these problems in time for a particular holiday.
Often, parents cannot agree on how the children will spend their holiday time, so Arizona courts try to enter orders for holiday parenting time that are fair and in the children’s best interests. Courts will typically evenly divide the holidays between the parents. The holiday schedule always supercedes the regular parenting plan. For example, if Christmas Day falls on a day that would typically be the mother’s day with the children, but the father gets the children for Christmas this year, the court’s order is that the children will be with their father on Christmas.
A typical holiday schedule will usually say something like the children will be with the mother on Christmas Eve and with the father on Christmas Day in odd-numbered years and will be with the father on Christmas Eve and the mother on Christmas Day in even-numbered years. They will be with the mother on Thanksgiving in odd-numbered years and with the father in even-numbered years. They will be with the mother on Easter in odd-numbered years and with the father in even-numbered years. They will spend every Mother’s Day with the mother and every Father’s Day with the father. They courts will also define each holiday, such as setting forth a time that the holiday parenting time begins and ends, in order to avoid future disputes as to when a parent gets to pick up the children to begin a holiday. Ideally, the parents will discuss the holiday schedule and will be willing to compromise and work together in order to agree on their own holiday schedule without having to ask the court to impose a holiday schedule on them and their children.
After the court orders a holiday schedule, it is easy to tell when each parent gets the children during the holidays. However, during a pending divorce, the parents may not have a holiday schedule. For example, parents who just recently filed for divorce cannot agree on how the children will spend Christmas this year. What should they do? First, each parent should consider the following facts: the children will want to spend time with both of them; they should consider adopting a plan that will allow the children to participate in as many of their traditional Christmas activities as possible; Christmas is important to both parents; and whatever schedule they get will probably be reversed the following year. Most important, as I always tell my clients, the two people in the entire world who are most qualified to make a decision in the best interests of their children are the mom and the dad. If the mom and the dad cannot or will not make a decision together, a judge who is a stranger will make the decision for them. Most judges in Maricopa County will put genuine effort into making a good decision with the information available to them, but no judge in Maricopa County is the children’s mom or dad. If the parents cannot make a decision together, they may seek an order from the court and should do so as soon as possible. The Superior Court usually has a very tight schedule around the holidays. Therefore, the longer the parents wait, the less likely the court will be to resolve the problem for them. If they cannot get an answer from the court in time, they may consider using a private mediator.
Another typical problem with holiday parenting time is travel. For example, one parent may want to take the children out of school to travel, one parent may not like the other parent’s proposed travel plan, or one parent may not want the children to travel to see the other parent’s family. The parent who is traveling should give the other parent the itinerary as soon as possible and at least as early as the parenting plan requires. If the other parent does not like the travel plan, he or she must remember that it is the other parent’s parenting time and, unless the travel plan proposes an unreasonable danger to the children, there is probably nothing that he or she can do about it. As for taking the children out of school, the parent taking the children out of school should coordinate with the children’s teachers on issues such as homework. Unless the children are at least average students, there is usually nothing wrong with taking the children out of school, as long as it is not for an excessive number of days. As for objecting to the children seeing their extended family during the holidays, the non-traveling parent needs to take a hard look at why he or she has an objection. Unless someone proposes a real danger to the children, each parent has the right to take the children around whoever he or she wants during the holidays (or any day they have the children). Courts will not order a parent to not take the children around someone just because the other parent does not like that person. The best interest of the children is usually to have a good relationship with their extended family and to see them on holidays. Obviously, each parent should not tolerate his or her family making negative comments about the other parent in the children’s presence. As with other holiday parenting time issues, the parents must truly consider the children’s best interests. Also, if they have to seek the court’s intervention, they should do so as soon as possible.
Finally, parents should be careful about what they say to their children, particularly about the other parent. I tell my clients that they should not say or write anything that they would not want to explain to a judge. Three subjects that inspire many parents to say stupid things to their children are the holiday parenting plan, gifts, and money problems. Examples of things to not say to children about the holiday plan are that you will be lonely and sad without them; remind them that they will not be together with you during the holiday or part of the holiday; or inform them that they will miss out on something like a visit with grandparents because the other parent got a court order that they spend time with the other parent. All these comments do is make children feel guilty and sad. Better comments include telling the children how lucky they are to get to have two celebrations or that you and the other parent have made sure that the children get to spend time with two families that love them.
As for gifts, bad and selfish comments include telling the children to not bring gifts from the other parent to your home or forbidding them to bring gifts from you to the other parent’s home (yes, people actually do this!) and criticizing gifts from the other parent, the other parent’s family, or the other parent’s new romantic interest. If you do any of these things, all you are doing is ruining your child’s enjoyment of their gifts. A better approach is to do the opposite. Allow your children to take their gifts to either home and be excited about their gifts, no matter the source.
Hurtful comments about money include telling your children that you cannot afford to buy them the gifts they want (or to do anything else that has a cost) because of one of the following circumstances: the divorce, you pay too much in child support or spousal maintenance, or the other parent has not paid enough child support or spousal maintenance. This is really an attempt to make the children angry at the other parent. A better approach is to explain that you do not have much money right now, but you will still have a wonderful holiday together. If the other parent can be as mature as you, you might try to coordinate with him or her to make sure that the children get everything you want them to get.
What all of this really means is one simple thing: if both parents can be mature and focus on what is best for their children, everyone will be better off.
I often consult with people who did not hire an attorney to represent them during their family law case. Now that their case did not go so well, they are looking to hire an attorney to fix it. Usually, it is too late to do much. One of the most common complaints of people in such a situation it that the Judge did not look at their evidence during the trial. However, there is usually a clear reason why the Judge did not look at their evidence.
The first and most simple reason that the Judge did not look at a self-represented party's evidence is that he or she did not move it into evidence. I have consulted with several people who did not understand that simply lodging the exhibits (leaving the exhibits with the court's staff prior to trial so that the court staff can mark them as exhibits) is insufficient. During the trial, the proffering party must establish a foundation for the exhibit and move it into evidence. Talking about it and referring to it is not sufficient. Too often, self-represented litigants think that the Judge will look at their exhibits just because it has been marked and do not understand why that did not happen.
Another common reason why the Judge did not look at a party's evidence is because of the right to cross-examine witnesses. Self-represented litigants often bring written statements to court. The written statements always contain testimony from friends, family, neighbors, teachers, and the like regarding the virtues of one party and/or the many flaws of the other party. Such statements are testimony and the authors of the statements are witnesses. However, the other party has the right to cross-examine witnesses and they cannot cross-examine a piece of paper. This is the primary reason why judges almost never admit such statements into evidence. Other reasons include that such statements are almost never made under oath, that the judge cannot evaluate the person's credibility and demeanor by reading a statement, and the Best Evidence Rule, which requires the best form of any particular evidence be presented (such as live testimony instead of a written statement).
The third common reason why a judge did not look at a self-represented party's evidence is the party's failure to follow procedure and meet deadlines. People often think that if they just bring their evidence to court, the judge will look at it and understand their position. However, the rules of procedure require that parties disclose their evidence long before trial. Also, the court sets deadlines for not only disclosure, but also to lodge exhibits with court staff for marking. Generally, if a party fails to properly and timely disclose evidence, or fails to timely lodge exhibits with the court for marking, the court will not admit them into evidence. People often do not understand the reason for this, but the rules and deadlines are meant to prevent parties from unfairly ambushing each other at trial with surprise evidence.
These are three of the most common reasons why the Judge did not look at a self-represented party's evidence. An experienced family law attorney can help people avoid these pitfalls. Thomas A. Morton is an experienced family law attorney in Phoenix, Arizona.
Too many people are not ready financially when their spouse decides to file for divorce. If you suspect that a divorce is in your future, it is important to take certain steps to protect yourself and your financial future. Not only do you want to be ready financially, you want to protect yourself in the event that your spouse decides to play nasty, underhanded games, such as run up (or cancel) credit cards, drain the financial accounts, or hide financial accounts.
1. Get to know your assets, liabilities and monthly living expenses. Many people have no idea of their monthly living expenses, debts or assets. While the reasons vary from household to household, many never see their spouse’s paycheck, their income tax return even though they may sign it, or know the status of the household debt. Worse, they have no idea of the assets, such as investment accounts. Be proactive. Search for records and know the financial condition of your family.
2. Consult with and get an attorney. An experienced Arizona divorce attorney can advise you of your legal rights and any potential complications prior to the divorce proceedings so that you are adequately prepared.
3. Have adequate cash on hand. All too often a spouse will go into a divorce without enough cash on hand to cover legal expenses, court fees, new housing, and routine bills. If divorce seems to be on the horizon, start saving as much cash as possible, as soon as possible, in order to cover these expenses. Also, start thinking about a budget. When you pursue a divorce, you and the other spouse will go from support one household with a certain amount of income to supporting two households with the same amount of income.
4. Become aware of the complete financial situation. Before the actual divorce takes place, it is very important to understand the financial landscape of your family. You will want to determine all of your outstanding debts, including all individual debts, as well as all joint debts. You will want to know and understand the complete financial picture of your family, which includes knowing all credit card accounts, home equity lines, student loans, and any business debts.
5. Retain adequate financial records. You will want to retain and maintain easy access to all pertinent financial documents, such as credit card statements, mortgage bills, mortgage agreements, insurance policies, previous tax returns, wills, retirement plan accounts, and paystubs.
6. Establish accounts in your own name. Once it becomes clear that divorce is imminent, you should take proactive measures to establish financial accounts in your name alone, including checking accounts, credit cards, savings accounts, and retirement accounts. You may also want to take steps necessary to secure individual car insurance.
7. Fix automatic deposits and payments. You should request that your employer re-route all of your payments into your individual accounts.
8. Ensure mortgage payments. If you have purchased a home with your spouse or you are both on the lease, you must determine who will continue making the mortgage or rent payments. Creditors, including mortgagors and landlords, expect to receive their payments regardless of your marital status or whether you are still living in the home. Even if you plan on moving out, you are still responsible for at least half of the mortgage or rent payments so it is advisable to come to some agreement early on regarding who will continue making the housing payments.
If you have further questions about how to prepare for a divorce, you can make an appointment for a consultation with Thomas A. Morton, a Phoenix family law and divorce lawyer.
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.
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.
Thomas A. Morton, P. L. L. C.
2916 N. 7th Avenue, Suite 100
Phoenix, Arizona 85013
If you have a legal issue but aren't sure how to handle it, call Thomas A. Morton, Attorney.
If you've got a problem, let's work together and determine how to help you!
All information on this website is not, and is not intended to be, legal advice. You should consult an attorney for advice regarding your individual situation, as each case is different and contains different facts. I invite you to contact me and welcome your calls, letters and e-mail. Contacting me does not create an attorney-client relationship. Please do not send any confidential information until you establish an attorney-client relationship with me.
Attorney Thomas A. Morton is located in Phoenix, Arizona, and serves clients throughout Maricopa County, including Tempe, Mesa, Scottsdale, Glendale, Peoria, Gilbert, Chandler, Goodyear, Surprise, Avondale, Cave Creek, Carefree, New River, Anthem, Black Canyon City, Sun City, Laveen, Buckeye, Goodyear, Litchfield Park, Tolleson, Youngtown, Queen Creek, Guadalupe, Fountain Hills, Paradise Valley, Wickenberg, Apache Junction, and El Mirage.