Divorce in the digital age can include evidence derived from many electronic sources, including cellphones, emails and social networks.
Every day, we connect to countless people, both in person and through the use of electronic devices like cellphones and computers. In our digital age, the importance of electronic communication cannot be discounted, and it makes up a vital part of our lives. What many people don’t realize is the impact it could have when we are involved in a family-related legal dispute like a divorce or dissolution of marriage.
Electronic communications in court
If you’ve ever watched a cop show on television, you are probably aware of the Mirandawarning that cautions those in police custody that “anything [they] say can and will be used against [them] in a court of law.” Though the context is very different in a criminal matter versus a family law issue, the basic tenet remains the same: what you, through your electronic communications, “say,” could be used against you.
The phrase “electronic communication” encompasses a wide range of digital activity, some of which the average person would never consider could have a dual purpose. This activity includes:
- Text messages
- Cellphone and landline call records
- Instant messages
- Digital photos posted online or stored electronically
- Social media posts
- Music preferences
- Social network friend lists
- Lists of followers/people or companies followed
- “Liked” pages
How can this evidence be used?
Electronic evidence often appears in the midst of contested cases, particularly those where emotions – and stakes – are high. This can include child custody cases, divorces, child support disputes and alimony disputes. The myriad ways in which such evidence can be used is perhaps best illustrated by an example.
Let’s assume that Jon and Mary are ending their five-year marriage. Jon has argued that Mary is much too devoted to her job to have sole legal decision making authority and primary parenting time of their young daughter. At the Hearing on Legal Decision Making and Parenting Time, he introduces as evidence her “check-ins” to the office and at home every day as well as her status updates about company events to demonstrate that she regularly spends 10-12 hours a day working, and that their daughter is left in the care of others during that time.
Mary argues that Jon should be paying child support while their case is pending and spousal maintenance after the case is done. Though Jon has told the court he is financially unable to make such payments, Mary introduces pictures of Jon and friends on an expensive recent vacation to the tropics. The pictures didn’t come from Jon himself, but he was “tagged” in them by a friend who happens to also be an online connection of Mary.
Responsible use is key
This example demonstrates how various method of seemingly innocuous online communication can be used in a family law matter. Many attorneys caution their clients to go on a social media “blackout” and deactivate their accounts during such times; after all, if nothing is posted, nothing can be used against them. Realistically, though, most people are hesitant to take such a drastic step. A good rule of thumb is to live a much more responsible online life. This will include:
- Never referencing the dispute, attorneys, judge or your ex in any fashion, positive or negative
- Cautioning friends not to “tag” you in photos, even old ones
- Not “checking in” to locations
- Not accepting new friend requests
Of course, there are other issues at play in family law disputes, particularly when children are involved. For guidance about digital responsibility in the context of a contested family matter, seek the advice of an experienced family law attorney in your area.