Introduction
Why do divorce lawyers think that social media affects family law disputes? Nowadays, social media like Instagram, Snapchat, Twitter, WhatsApp, Facebook, and LinkedIn are a part of everyone’s life. Social media is a platform for emotional support when you feel alone or are coping with your grief. Yet, one thing that individuals do not consider is the effects of written or visual social media disclosures on their family disputes. According to divorce lawyers, what you post or share can be used against you someday in the courtrooms, or they can be twisted!
You might be asking yourself whether the use of social media evidence matters or not. With this in mind, the impact of social media on court proceedings is need-to-know data for both clients and divorce lawyers. In this article, you will read more about the potential effects of the digital footprint left by people, especially in family law disputes, from the perspective of divorce lawyers.
Divorce lawyers say: Be careful about what you post!
Today, the evidence is not limited to physical type. The scope of the evidentiary rules is extended to electronic evidence. You can present screenshots or text messages in court. According to the National Law Review, 81% of lawyers discover social networking evidence worth presenting in courts and tribunals. In other words, social media has become such a force in family law that divorce lawyers usually spend as much time researching Facebook pages as they review and analyse relevant case laws.
Many courts have adopted the above approach and rejected the plaintiffs’ privacy objections. For example, in McMillen v. Hummingbird Speedway case (No. 113-2010 CD, 2010 WL 4403285) and Romano v. Steelcase Inc case (907 N.Y.S.2d 650, 653-54), the courts did not accept the plaintiff’s arguments that the communications through Facebook were subject to a “social network privilege.”
It is worth mentioning that if there is proper authentication of the evidence, screenshots and records can be digital evidence in courts at first; however, the judges will determine whether or not they are valid. Therefore, factors like relevancy, materiality, and authentication of social media evidence should be considered. In addition, the admissibility of screenshots and, generally speaking, social media-derived evidence depends on the laws and regulations of each specific jurisdiction.
Evidence available on your social media
Certain situations posted on social media can be used against you. These include:
- Drug and alcohol problems. Be careful about the type of photos and videos that you post on your social media. Regardless of whether your post is temporary or has a time limit, it is possible to get hold of it and use it against you.
- Extravagant Lifestyle. If the family law proceedings allege that you live an extravagant lifestyle, be careful before posting anything that shows you on expensive holidays or buying luxury items.
- Mental Health Problems. There might be instances wherein custody of the children may be in danger due to mental health allegations. Therefore, be careful while posting about your mental health on social media or other private groups.
- Co-Parenting Relationship. Avoid making derogatory comments against your partner on social media, and delete any derogatory comments made by any of your friends. These comments might be used as evidence to prove a poor co-parenting relationship, making it difficult for you to live with your children or spend time with them.
Other types of social media posts that can create issues
Every single post of yours is capable of having a profound impact on your family law matter. The types of posts are:
- Sharing any private information related to your partner or child.
- Sharing any provocative images of yourself or your partner.
- Images, videos, or posts portraying anti-social or risk-taking behaviours, including using illicit substances or alcohol.
- Posts alluding towards criminal activities.
- Sharing of screenshots through private messages through communication applications.
- Posts containing any threat of violence or admission of any previous violence.
- Business ownership details or any employment history.
- Posts related to legal proceedings, including posts related to people involved in the proceedings.
The result of having such posts on your social media depends on a case-to-case basis. They can question your credibility, impact the overall result of the matter, or might also lead to criminal charges or imprisonment.
What do the divorce lawyers advise you to do?
Social media-focused evidence can impact child support and custody, divorce, cohabitation, and alimony cases. One notable example is when someone stops paying the spousal or child maintenance, your posts or photos can evidence liquidity and your financial status. Even worse, a simple photo can show that you are an unfit parent to raise the child, and accordingly, it can affect your visitation and custody rights.
So, remember that you have some mutual friends on social media! Modifying “privacy” settings and changing passwords can also avoid further problems in divorce proceedings.
Anna D’Addona is an experienced family law specialist and divorce lawyer in Australia. Here are some of her tips to remember about social media:
“If you intend to disparage or negatively comment about your former partner, it is quite likely that this information will be funnelled back to your former partner and/or their family. Regularly, in family law proceedings, Facebook posts, Instagram posts, and other social media posts are annexed to or tendered to the court in support of allegations that you are not prepared to facilitate a relationship between your children or a party in attempting to alienate a child from one of their parents.”
Remember that some kinds of social media can indicate the users’ location through metadata. Moreover, according to Madison Kelly, a divorce lawyer, “where full and frank disclosure is not being provided: A LinkedIn account may show that a party either is or has been employed somewhere that they had previously not disclosed”.
Do not post about family law proceedings online.
In addition to the past social media posts, your posts during the proceedings also play a role in family law matters. For instance, in Australia, under Section 121 of the Family Law Act, 1975, it is an offence to publish any information about any person involved in the proceedings or publish information related to the proceedings in themselves.
Some types of information cannot be published, including any information (direct or indirect) that could help identify the people involved in the proceedings. These are:
- Names, Alias, Pseudonyms, or Titles
- Address (personal and court)
- Description of persons
- Employment details
- Information related to your relationship
- Property ownership details
- Information on interests or beliefs of any person involved.
Any breach can lead to a penalty or punishment according to the law of the country.
Analysis of divorce lawyers
Gallion v. Gallion case (2011 WL 4953451 *1) is interesting. According to the court:
- “Counsel for each party shall exchange the password(s) of their client’s Facebook and dating website passwords.
- The parties themselves shall not give the passwords of the other. If either party already possesses the password of the other, the party whose password is in possession of the other party may change their password and give the new password to opposing counsel only.
- Neither party shall visit the website of the other’s social network and post messages purporting to be the other”.
Moreover, in O’Brien v. O’Brien’s case (2014 WL 521375 *1), the parties agreed to withdraw their fault grounds for divorce and proceed with a no-fault divorce. Yet, the wife requested an award of alimony. In doing so, the court also considered the social media evidence and stated that the breakup was the husband’s fault, vis a vis, his outside relationships with other women. Accordingly, the court held that “evidence of marital fault or misconduct is relevant and admissible when considering awarding alimony”.
Tips for social media
To avoid family law disputes involving social media, the following are some precautions:
- Update your passwords. If your partner can guess your password or if your partner already has information about your password, they may try to access your social media to access or create evidence.
- Protect your location. Posting on social media is capable of providing information about your whereabouts through the use of location data or metadata.
- Be mindful of what you post. Try to avoid any information about your partner or the court case. You can also ask your friends and family to do the same by avoiding posting and tagging any updates or photos that involve you.
- Avoid displaying purchases. Family law matters majorly include financial matters as well. Therefore, try not to flaunt your finances.
- Do not delete. You must have heard the phrase, “Nothing gets deleted from the internet”. Therefore, be cautious since deleting a post might not always favour you. It is still possible for your friends or family to take screenshots of your posts and use them against you. Further, deleting any image might be considered to be equivalent to evidence tampering. If there is still something that you think should be deleted, consult your lawyer before doing so.
Conclusion
In sum, online presence plays an important role in different family law-related disputes. Evidence obtained from social media can make a difference in the ultimate decision of the case. Thus, consider how a reasonable person would view your content before uploading a simple photo or sharing something on your social media channels.
Above all, if you are a divorce lawyer, keep this issue in mind to represent your client effectively. You can print a Chain of texts and submit it to the court. So, divorce lawyers should advise their clients to withdraw from the public eye in divorce proceedings. Be cautious!
Social media is capable of having serious implications for family law disputes. Therefore, it is always better to seek advice from an experienced lawyer. Get in touch with our quality lawyers at LegaMart and discuss your concerns related to the matter today.
Frequently Asked Questions (FAQs)
How often is social media evidence used in court proceedings?
According to the National Law Review, 81% of lawyers discover social networking evidence worth presenting in courts and tribunals. In other words, social media has become such a force in family law that divorce lawyers usually spend as much time researching Facebook pages as they do reviewing and analysing relevant case laws.
What are the types of evidence that your social media can provide against you?
The following are some types of evidence:
- Drug and alcohol problems
- Extravagant Lifestyle
- Mental Health Problems
- Co-Parenting Relationship
Should you use social media during the pendency of your family law matter?
No. In addition to the past social media posts, your posts during the proceedings also play a role in family law matters. For instance, in Australia, under Section 121 of the Family Law Act, 1975, it is an offence to publish any information about any person involved in the proceedings or publish information related to the proceedings in themselves. Any breach can lead to 12 months imprisonment.
