By Molly Zamoiski
Who doesn’t have some sort of social networking account today? Between sites such as Facebook, Twitter, Instagram, and LinkedIn, we are all connected to each other in one way or another.
When filing for a divorce, many people do not consider the consequences of having a social media account. Whether your account is set to private or public, or you are an avid user or not, a social media presence can bring about negative consequences and an undesirable outcome in your litigation.
As the popularity of social media increases, the effects of having such an account widen. Ten years ago the word “Facebook” would never have appeared in a court opinion, but today it is all too common. You can gather almost all the evidence you need in a case by taking a cursory look at an individual’s various online accounts.
Courts have recognized the prevalence of social media in cases today and have adjusted by incorporating such evidence into their decisions.
In a 2013 case, after his former wife was alleged to have made disparaging tweets about him, Los Angeles Lakers point guard Steve Nash was granted an order barring his ex-wife from making disparaging comments about him through social media (see, Nash v. Nash, 232 Ariz. 473 [Ct. of Appeals of Arizona, 2013]).
In another Twitter case, a woman in Pennsylvania was convicted of stalking and was banned from using Twitter after she tweeted veiled threats and made false legal ethics complaints about a judge who placed her children in foster care.
“Twitter Gags,” as they have been called, are not the only way Courts have integrated social media into decisions and orders.
The Court of Appeals in Kentucky affirmed a ruling that physical custody of the parties’ children shall be with the father, after it allowed Facebook photos into evidence to demonstrate a mother’s alcohol consumption, when drinking was against the advice of her mental health treatment providers (see, Lalonde v. Lalonde, No. 2009-CA-002279-MR.).
In another Facebook case, after a mother admitted that she utilized Facebook to insult and demean her child, the Third Department, Appellate Division in New York issued an Order of Protection prohibiting her from posting any communications to or about her children on any social networking site (see, Melody M. v. Robert M., 103 A.D.3d 932 [3d Dept., 2013]).
While privacy settings may prevent certain people from seeing information on your social networking accounts, it is still possible for this information to become public to those involved in your case.
In a 2015 Westchester County custody dispute, the Court directed that the Defendant produce printouts of her Facebook postings, which the Plaintiff alleged documented her travels and could confirm her time away from their child. (see, A.D. v C.A. 16 N.Y.S.3d 126 [Westchester Co., 2015]).
In a Wisconsin case, investigators filed a search warrant with Facebook to locate a father who owed more than $100,000 in back child support. Facebook officials provided federal agents with photos, comments, messages, interests, IP activity, and a friend list in order to assist the court in locating him.
Facebook and Twitter are most likely the first two social networking sites that come to mind when thinking about evidence in a case, but there are reported accounts of other sites that have been used in litigation. For example:
A father’s Match.com profile declared he was both single and childless, while at the same time he was in court seeking primary custody of his children. Further, in a battle for custody, evidence was subpoenaed from the gaming site World of Warcraft to prove that a mother was playing the game with her boyfriend during the time that she was supposed to be out with her children.
Clearly, courts are adjusting to society’s exponentially increasing obsession with social media. It is impossible to stress the importance of thinking before you post, especially when contemplating a divorce action. While you may not think there will be any repercussions to posting a comment on Twitter or updating a job promotion on LinkedIn, it may be the reason you lose your children in a custody battle or are ordered to pay more maintenance to your ex-spouse in a judgment of divorce.
In order to control the extent that your social media presence will affect your case, it is important that you are open and honest with your divorce attorney about what may be found on each of your accounts. This way, there will be no surprises in court and your attorney will be fully prepared to defend you.
The Edelsteins, Faegenburg & Brown LLP
NY-based Matrimonial Law Attorneys
26 Broadway, Suite 901
New York, NY 10004