Facebook Provides a Wealth of Evidence in Divorce and Custody Cases

Historically, the laborious gathering of detrimental evidence was done through private investigators or subpoenas for credit card statements and phone records. The advent of social media ensures the same damning evidence is effortlessly at the fingertips of opposing counsel. It appears that people share intimate personal details online based on a false expectation that information will remain private. The American Academy of Matrimonial Lawyers says 81 percent of its 1,600 members have used or faced evidence from social networking sites over the last five years.

How can social networks sites, like Facebook, adversely impact your divorce case?

No-fault divorce has been adopted across the country. As a result, evidence of wrongdoing does not have the direct impact it used to have under the former standard, fault-based divorce. Even so, information available through social networking sites can be costly. Evidence gathered from Facebook can undermine credibility in court. Consider a client who claims he can’t pay a set amount of spousal or child support. If opposing counsel discovers pictures he posted of a lavish vacation or a new luxury car, the client has tarnished his reputation. Such evidence can be used substantively in favor of a support increase.

What about custody?

Under both Federal and State rules, character evidence is generally impermissible in civil cases. However, in child custody determinations, courts are allowed to consider the “fitness” of each parent. In California, courts must consider the child’s health, safety, and welfare. A parent’s custody or visitation rights can be limited in cases where there is evidence of a parent’s drug, alcohol, or sex abuse; where there is excessive discipline or emotional abuse by a parent or a parent’s significant other; or where the mental and physical health of the parents is questionable.

A seemingly innocuous photo of one parent slinging back a few beers at a sports bar or clubbing in a mini-skirt could reflect poorly on one’s fitness as a parent. Even guardians ad litem (court appointed representatives who advocate for a child’s best interest) are scouring social network sites when deciding which parent to recommend. In divorce or custody cases where evidence is particularly inflammatory, many clients choose to settle rather than be exposed as engaging in immoral or illegal behavior.

How can you protect yourself if you are currently involved in divorce or custody litigation?

The best thing you can do to protect yourself from the latent consequences of social networking is to delete your Facebook page. Choosing to maintain pages on social networking sites could compromise your interests and bargaining power in litigation. If you vehemently insist on keeping your Facebook account, here are some practical tips to help you avoid common pitfalls.

  1. Use your privacy settings to screen who can view your wall or photo albums.
  2. Don’t discuss anything that is going on in court or disclose communications between you and your lawyer. Disclosure can act as a waiver of the attorney-client privilege or confidentiality.
  3. Be careful who your “friends” are. If your privacy isn’t set tightly enough, your page (photos, especially) may be accessible via third-party accounts (“friends of friends”).
  4. Don’t contradict assertions in court with photos or posts. Even photos taken by a friend and posted on their page can turn up during litigation.
  5. Don’t demean your ex via Facebook. This is especially true if you are in a custody battle and your children have access to your page. In most cases, courts consider whether each parent is able to facilitate the child’s relationship with the other parent. The last thing you want to face in court is the accusation that you were trash talking your ex to one of your children.

The bottom line:

Regardless of whether you are presently going through divorce, remember that the Internet is a public forum. Once something has been posted, it can never truly be deleted. Don’t post anything online that you wouldn’t want your mother to see.

Originally posted Wednesday, August 15, 2012 7:00 PM.

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