The Dangers of Social Media in Litigation Land

APRIL 30, 2014
I_Do_Marriage

Photo by Emily Long

Technology and social media can have a wonderful impact on your relationships.  I don’t need to tell you how Facebook posts, tweets, Instagrams, Pinterest boards, photo streams, and regular old e-mails and text messages help you stay connected with family, friends, and your partner.  When used to coordinate dinner plans, share important medical information, fundraise for charity, network for a job or announce a new baby/pet/business venture, social media can be great, fun, and fruitful.

BUT, if you are not careful, technology and social media can also wreak havoc on your marriage and create serious problems for you during a divorce.

I will leave it for a couples counselor to tell you why it can be problematic for your relationship if one of you is unhappy with how much time the other spends checking his/her phone, if you disagree about how much is okay to post about your engagement/wedding/marriage/children, or disagree about whether it’s okay to “friend” an ex.  And it’s for the two of you to work out whether or not you should have access to each other’s e-mail, phone or Facebook passwords. There is a lot to consider in this sphere to ensure your continued marital (or couple-y) happiness. I am neither here to judge nor to offer advice with respect to your relationship.

I can, however, offer some insight into how technology and social media can play a significant role, and frequently be quite problematic, in the context of a divorce, custody, or support proceeding.

I often like to tell my clients that real life can be radically different from “litigation land” and that you have to be prepared for this dissonance.  Consider the following example: following a not-very-amicable, recent physical separation from your spouse or partner, you (the world’s most engaged, devoted, loving and caring parent that has ever existed) decide to go out with some of your girlfriends on a Saturday night, and you get really drunk.  You even end up sick because you literally hadn’t had a drink in about 5 years (since before getting pregnant with your first child).  No harm done, you think, because this was a weekend that the kids were with your soon-to-be ex-husband, so it’s not as if being hungover on Sunday impacted your ability to parent.  A few months later, though, your ex’s nasty custody motion contains photos of you from that night that were posted on Facebook or Instagram by your friend (or you) who thought it was hilarious.  Your ex twists things around and tells the court that you have a drinking problem and he has concerns about your ability to take care of the children [even though this is absolutely not the case].

Will this photo mean you’re going to lose custody?  No.  But, depending on how insistent and/or persuasive your husband is, it could lead to social worker visits or forensic psychologist evaluations.  At a minimum, if your case goes to trial, your attorney will have to bring in witnesses to testify about the night in question.  Easily explainable, but more work for your attorney (and hence, more expensive for you), and a ruthless ploy by your ex to deflect from the fact that you are a superb, loving parent.  All for pressing the upload button.

Photos shared on social media sites can be used in a variety of other ways too.  Crying poverty in court claiming that you need more child or spousal support because you can’t even pay your electric bill?  Social media check-ins at expensive restaurants and spas hurt your argument and make you appear dishonest to the court (even if it was your sister who paid for those outings only because she was visiting from out-of-town and wanted to treat you).  Maybe you thought that Instagram selfie you took with your son at the park was harmless, but when your husband analyzes it and notices you are wearing an expensive Bulgari necklace he never bought you, he can make the argument that you either have people gifting you expensive things – which means you have alternate sources of support – or you have money to burn, in which case you really don’t need more support than you are already getting.  Even if the truth is that the necklace is your friend’s and she let you borrow it for a week, good luck convincing the judge.

Sometimes litigation land and real life aren’t so different, but social media and/or technology may be a legitimate issue for you.  You may just be a person who is tethered to your phone, tablet or laptop because you like it!  You crave the interaction with other people that your Facebook account gives you and post and comment frequently. You love reconnecting with old friends on LinkedIn, and you enjoy pinning recipes, exercises and craft ideas on Pinterest.  You check e-mail constantly for work and personal reasons, you love to play Words with Friends and/or Candy Crush and you are thrilled that your smartphone allows you to do this while your child is at the park, at home watching TV or playing in a soccer game.  Be aware that this comes up in divorce proceedings too!  I have had equal numbers of cases where mom or dad argues against more time for the other with the kids, because “all he/she does is look at the phone the entire time the kids are with him/her.”  You may be an excellent parent notwithstanding all of this, but again, you are setting yourself up for an unwelcome, potentially expensive hurdle.

It is not my intent to scare anyone out of using and enjoying technology and social media, and it’s not for me to say how much is too much.  While you should always be mindful, generally, of what you put out on the Internet, it is also important to know that whatever is out there could end up in litigation land and potentially be scrutinized by a judge who will make decisions about you and your children if divorce is ever in your future.  While none of us plan to divorce, about 50% of us will, so it’s better to be safe than sorry when it comes to what you share on social media.  If you do find yourself consulting with an attorney about a potential divorce, take the time to review your Facebook wall, tweets and Instagrams and bring any that you are unsure about to the lawyer’s attention as soon as possible.

 

[Now for the requisite disclaimer: Nothing Jennifer Kouzi authors on this site should be considered legal advice, and no attorney-client relationship has been formed by virtue of you reading the above post. To contact her for individual inquiries, call 212.921.5526 or e-mail her at jennifer@kkallp.com.]

 

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