It seems that not a day goes by without social media applications such as Facebook or Twitter being in the news. Technology has had an enormous evidentiary impact in the field of divorce litigation. In Massachusetts, for example, private conversations between husband and wife are generally disqualified as evidence in litigation pursuant to G.L. c. 233, §20.
However, because this section of the Massachusetts statute refers to conversations, written email communications, text messages, and other written messages between spouses are routinely admitted into evidence in divorce cases. Social media posts, which are neither verbal conversations nor private, are a fair and often fertile evidentiary game in divorce litigation.
Now, in the context of COVID-19, where individuals and families are restricting out-of-the-house social gatherings and events, the use of social media as a method of keeping in touch is abundant. And, the allure of airing grievances or snooping on a future former spouse within the social media sphere is strong. It takes only a moment and the touch of a screen to create an exhibit for the court to consider in your divorce case.
6 Tips on Avoiding (or Creating) a Social Media Evidentiary Minefield
1. Never write anything to anyone that you would not want to be read out loud in a court of law.
2. Follow the “24 Hour Rule” of communication.
If your spouse, or anyone for that matter, sends you something via email, text message, or Facebook Messenger, or posts something on Facebook, Twitter, LinkedIn, Reddit, Pinterest, Tumblr, etc. that baits or warrants a response from you, wait 24 hours before you reply when it is possible. Further, if a communication is a general complaining or gossip, you would be well-advised to avoid it altogether. But, if it is something that you do need to address, like a text arranging a child custodial transfer, be polite and as concise as possible. Ignore content that looks to engage you in a negative exchange and focus on the essential subject matter of the communication, like the time and place for a custodial transfer, and do not take the bait on non-essential content.
3. Do not post information about your divorce on social media. Just don’t.
This includes posts like “had a great day in court today, my lawyer really mopped the floor with the other lawyer”. That example may sound silly, but it actually happens that people post such messages now and then. It can backfire in terms of trying to negotiate a settlement later on down the litigation path. Such posts can also be used against a person who may later be cast in the light of someone who enjoys beating up on the other spouse – by proxy. Such posts can be quite useful when the side getting beaten up uses the image at trial that the other side is a bully, and there is a question as to whether a shared co-parenting arrangement is warranted between the aggressor spouse and the victim spouse.
4. Do not boast about new acquisitions.
Bought a new luxury item? Great! Do not put a bow on it, take a picture, then post that picture on social media for your new BFF to see. It may seem cute at the time and might be completely innocent but it is bound to come up at the next court hearing, and the next, and the next. Before long, you may have paid more in legal fees explaining the social media faux pax than the item cost.
Disengage from extended family members (in-laws) on social media.
They may be the nicest people in the world as far as you know, but the old adage that “blood is thicker than water” is more applicable in the realm of divorce litigation than perhaps any other context. Before you know it, a conversation you had with an in-law via email or text, etc., has been twisted into an unrecognizable story where you have transmogrified into a Bond villain bent on world domination.
5. Remember that social media sources can be sent a subpoena for records.
It can be cumbersome, but emails, text messages, social media posts, etc., are a lot like tattoos. You may delete them but they often continue to exist in the ether of the internet and may be able to be retrieved.
6. Don’t coach the other side to stop posting something they shouldn’t be posting.
Napolean reportedly once said, “never interrupt your enemy when he is making a mistake”. Social and electronic media formats, for some reason, often reflect the real personality of a person who may be adept at concealing certain personality traits when it best serves them to do so. If you see something that concerns you, bring it to the attention of your lawyer – not your ex-spouse.
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