Social Media in a Divorce Case

Today’s culture is driven through social media.  Each day billions of posts travel through the Internet via social media outlets such as Facebook, Twitter, Snapchat, and LinkedIn, among others.  People are connected in ways that they never were before.  However, all of this sharing of the details of an individual’s personal life can come back to haunt them in a divorce.

It is estimated that up to two-thirds of attorneys already use Facebook and other social media outlets to gather information in divorce and family law cases, and that number is only likely to grow as the popularity and use of social media continues to increase.  There is a treasure trove of information that an individual posts on the Internet that is generally freely accessible to attorneys and easily documentable for use in Court.

When a person claims they cannot see their children due to a “business trip” they can be betrayed when their Facebook posts document that they are actually on vacation.  It is very difficult to “walk back” something you have posted on social media.

While certain items that can be useful for matrimonial attorneys are fairly obvious, such as photos of a cheating spouse with another person or threatening and harassing posts made by one spouse on the other’s page, there are many other applications that may not seem as self-evident.  For example, the information in someone’s LinkedIn account about salary or bonuses may be used to impute income with regard to child support and maintenance.  Looking at a person’s “connections” can lead to finding a list of customers for someone who is self-employed, which can potentially obtain material to verify a new worth statement or other financial records.

But it is not only your social media accounts that could lead to relevant information.  Pictures or comments you post onto someone else’s Facebook page can also be very harmful and problematic for you in Family Proceedings.

Service of process can now be made through social media under very unique circumstances.  A New York court has permitted service to be rendered via Facebook.  In that case, the only means of contact with an estranged spouse was via Facebook, as they were unable to track the individual down using other methods.  So the judge allowed service of the Summons to be rendered via a Facebook message, which acts as a cross between email and instant messaging.

A spouse might believe they can get away with deleting their accounts, but that does not always make all of the posts “disappear”.  The old adage regarding the Internet is often very true: anything you put on the Internet will stay their forever.  The first potential issue comes from whether your account is actually deleted or just “suspended.”  Facebook allows a user to suspend their account instead of deleting it.  The information on the old posts remains and can be reestablished at any time.  Also any posts that were made on another user’s page may remain throughout the suspended status.  In addition, there are other ways of accessing information on the Internet in regards to old posts.  Often these posts, especially photos and videos, are lifted by other websites or individuals and can be accessed via Google or other search engines.  In fact, there are entire websites specializing in “background searches” that compile this information on people only to sell it back to them or to others.

But what about online privacy, you ask?  Don’t divorcing parties have an expectation of privacy regarding their online posts?  The Court’s answer has been generally “no.”  The rules regarding these issues are evolving and while some Courts have stated that there is an expectation of privacy in a person’s password to access social media accounts, most Courts have stated that there is no expectation of privacy in the posts themselves.  Thus, as long as the information is accessed legally and could be accessed by anyone, it is all fair game for use in a marital proceeding.

The key is to use social media correctly with knowledge that less is more when it comes to posting online and that NOTHING is ever gone or deleted forever.

 

“Social Media in a Divorce Case” was written by Michael B. Schulman, Managing Attorney.