Social media and technology surround us. Everywhere you look, people are on their phones either texting, or scrolling through Facebook or other social media websites. The increase in technology and social media has affected many aspects of our lives, including divorce. Social media posts and text messages are frequently used as negative divorce evidence.
Text messages are admissible in court and can even be subpoenaed if necessary. In fact, according to the American Academy of Matrimonial Lawyers (AAML), text messages have become the most common form of divorce evidence.
Without even realizing this, any text message you send to your spouse, or soon to be ex-spouse, can be saved and printed. As a result, people have the capability to provide their attorneys with entire chains of text messages that were exchanged between themselves and their spouses. A text message which is sent in the heat of an argument will have a different tone than one sent at other times. This type of text message could result in portraying a negative image of yourself to the court, and may contradict the calm and neutral disposition that you may be trying to present to the court.
Social Media Posts
Your social media posts also may be admissible as evidence in court so long as they were not obtained by deceitful or illegal methods. Therefore, you cannot create a fake profile to “friend” your spouse, or hack into your spouse’s social media account profiles. However, any public information that your spouse has posted, or that his or her friends or followers have shared that you are able to view may legitimately be used as evidence. While some may believe that their actions online will not have the same consequences as real-life events, this is a huge misconception when dealing with divorce. The reality is that what a person posts online can, and often does, have serious repercussions in their divorce or child custody case.
These social media posts can provide a wealth of information that may not otherwise be readily available to an ex or soon to be ex-spouse and his or her attorney. For example, most people do not list their income on social media but many of their posts reveal financial prosperity. This could be significant if your spouse is arguing that they do not have enough money to pay a certain amount of support (whether child support or spousal support) while their Facebook posts reveal costly vacation travel. Additionally, any posts that reference high-end purchases can diminish a claim of financial woes or even unemployment.
Similarly, both parties in a divorce are required to disclose to the court all of their financials, including their assets and income. In some situations when people fail to adhere to the disclosure requirements, the information can be and has been discovered through their social media posts. For example, cases exist in which individuals failed to disclose side businesses which were generating income. The businesses were discovered through social media posts.
Consider a situation where an individual is supposed to be looking for a job, yet social media posts reveal that the person is doing everything except searching for a job.
While adultery is not grounds for divorce in California, posts pertaining to a spouse spending time with another person certainly can affect one’s case. For instance, an individual may claim that they do not have any money to spend on child support, but then posts pictures on vacation with a new partner. The court will likely consider these posts when making a decision pertaining to that person’s financial situation. Because California is a community property state, any assets (including income) acquired during the marriage are equally owned by both spouses. Thus, any posts suggesting that money is being spent on a new partner would technically be money that is taken from the marital estate until the parties are officially divorced. Therefore, a court could order that the spouse “reimburse” the marital estate the amount of money he or she spent on his or her new partner. Again, all of this information can be discovered through social media posts.
Social media posts can also affect child custody matters. For instance, if a person claims that he or she does not have any time to spend with their child on certain days of the week and then proceeds to post photos of being out with friends on the same night, such posts certainly can affect a judge’s perception of dividing the parenting time between the spouses. To the contrary, if posts emerge of a parent drunk and partying at a time when he or she should have been watching the children, a court could rule that the children were not properly cared for.
Although social media and texting are prevalent and part of our everyday lives, you should remember to think carefully about your posts and texts when going through a divorce or custody proceeding. Most likely your spouse and his or her lawyer will be looking through your online life. Therefore, taking a break from social media or being extra mindful about your posts during this time can help to ensure that social media and texting will not have a negative impact on your case.