Strickler, Platnick & Hatfield is known as “the modern family law firm.” We could hardly claim this title if we did not devote some attention to the way modern families communicate: electronically. When we talk about electronic communication, we mean things like email, texts, voicemails, video conferencing, instant messaging and of course, social media.
Even before the COVID-19 pandemic, people were spending a lot of time on their computers, tablets, watches, and phones. Since the pandemic began, electronic communication has become even more prevalent; for some people, it has become their primary form of contact with others.
In short, electronic communication is an essential part of our modern lives. It affects not only how we communicate, but how we relate to those in our lives. Like any powerful force, it can have both positive and negative consequences—sometimes at the same time.
It can allow friends to support each other, or spouses to engage in infidelity; it can help parents and children in different households stay in touch, or spread gossip. It can help an emotionally injured spouse receive comfort and support from family and friends, or provide detailed evidence to the other spouse for use in court. It can locate a loved one at any time of day or night—now, just let your imagination think about that one. Essentially, electronic communication is a tool that should be used carefully, with much forethought and discretion.
Because electronic communication is such an integral part of our modern life, the impact it can have upon a marriage and divorce is sometimes difficult to discern clearly. The next sections will discuss how electronic communication, like social media, can contribute to divorce, how it can be used in a divorce or custody proceeding, and how you can protect yourself and prevent your communications from coming back to haunt you.
Generally, for a marriage to succeed, it is important for a couple to have shared goals and interests. Yet no couple is likely to share all the same interests, so having some different outlets or hobbies is to be expected. Social media can be one of those separate interests and a welcome distraction from the stress of daily life. Like any diversion, when something draws one spouse’s attention away from the other for too long, it can create or exacerbate tensions that already exist within a marriage. Rather than confronting or dealing with marital problems directly, partners often retreat further into their own online activities as a maladaptive coping mechanism.
This is not to say that married couples should never use social media; however, people should recognize it can distract too much from the hard work of maintaining a marriage. Specifically, recent studies have shown that increased use of Facebook is linked to decreased marital satisfaction. Secretive use of social media by one spouse can signal a number of other marital problems.
Excessively withdrawing into an online world can be a sign of emotional or actual infidelity, disinterest, mistrust, and poor communication within the marital unit. Overuse of social media can also lead to jealousy and suspicion on the part of the other spouse—even if the overuse is benign. Unfortunately, such suspicion often becomes justified over time if other marital problems coexist. This means that the excessive use of social media can become as much of a problem within the marriage as the typical troubles couples face.
While other tensions brew within a marriage, social media provides both an easy escape and an opportunity to reconnect with an old romantic partner or to find a new one. However, and most notably, regular engagement in the online world provides a documentable snapshot of an individual’s online conduct. The cautionary tale here is to be aware that online usage can provide a break from marital doldrums or other marital issues, but the online world also provides a concerned spouse with a detailed, written, and photographic record of a digital life.
Whether or not social media or other online activity contributed to a divorce, it can certainly be used as evidence in one. Electronic communications can be used in a variety of ways, including as evidence of:
Passwords and privacy settings are not as foolproof as many people believe, and in any case, a spouse or diligent opposing attorney does not need to come by this information by snooping. During the discovery process of litigation, attorneys in the case can (and will) request relevant information and documents from the other party—including social media posts, emails, and texts.
Digital communications can present a comprehensive, and often damning, view of a party’s character and thoughts. When people are texting a friend or bragging on social media, they tend to forget that the same communication or information later might be used against them in court (especially since they may believe those communications are protected by privacy settings). Accordingly, this information may reveal information that is contrary to their interests in a family law matter.
Even seemingly innocent statements can be used in unanticipated ways. For instance, a description of job qualifications posted on a professional networking site might suggest you are able to be self-supporting and not actually in need of the alimony you have requested. A picture of you indulging yourself at a lavish resort posted on Instagram could be used to counter your assertions that you cannot afford to pay the child support that is being asked of you. What you considered a lighthearted joke about your kids’ neediness on Twitter could be used to portray you as an uncaring parent.
Social media is not the only electronic communication an opposing attorney could mine for evidence. Your emails, texts, and instant messaging apps may be fertile ground for evidence against you as well. Because communications through those channels are typically intended only for the eyes of one other person, people are likely to be even more unguarded when using them than they are on social media.
As discussed above, even seemingly innocuous posts and messages can be used in a divorce, child custody, or other family law matter. The wisest course of action is to refrain from posting on social media as soon as you become aware that you may be involved in a legal action. To the extent that you must use social media, post thoughtfully; before taking that post live, imagine it on a screen in a courtroom before the judge in your case. The same stricture applies to texts and emails. Of course, consider the appropriateness of texts and emails you exchange with your spouse because you may be reading them again someday in the courtroom.
Should you go a step further and delete all of your social media accounts? That’s probably not a good idea since each litigant has an affirmative duty to preserve evidence once the possibility of litigation becomes known. That means that the time to consider whether a posting should appear online is before you ever make the initial posting. The fact that you removed pages or postings from the online world after posting them could be construed to mean that you knew you had something to hide.
Deleting your social media account could lead to your spouse’s attorney accusing you of destroying evidence in the case. Moreover, even when you believe you have deleted something online, there are many ways to have the information recovered with the use of a forensic computer expert—but there are other low-tech options to fear as well, like screenshots or printed copies of any postings made before a deletion occurred. As a general rule, you should not delete your social media accounts unless and until your individual attorney has advised you it is safe to do so.
Of course, the very same forms of communication that could be used against you in a family law matter could also be used as evidence against your spouse or partner. To best protect your interests and advance your cause, work with attorneys who are experienced in the modern (and ever evolving) online world and who are known for their tactical and strategic approach to developing, defending and presenting appropriate evidence in family law matters.
If you have questions about how the use of social media and other forms of electronic communication could affect your divorce, please contact Strickler, Platnick & Hatfield to schedule a consultation.