Sometimes I think I am the only person in the world who does not use Facebook. Well, actually I do have a Facebook page for my law practice, but I do not have one for personal use. I do not post personal news or photos, nor do I check out the Facebook pages of my friends. The truth be known, I don’t even like group texting. Am I the only one old enough to remember telephone party lines? I didn’t like those either!
This is a personal aesthetic. I simply tend to be a private person in an age where everyone seems to feel that everything that happens is everyone’s business, from the mundane (“great sale on organic apples at the grocery store”) to the extraordinary (“our son’s wife just gave birth to quadruplets!”) and everything in between. However, as a divorce attorney I know that, whether one-on-one or broadcast to the world, once it’s posted on Facebook, sent in a text message or emailed, it’s fair game for your divorce case.
There is a process that takes place during the divorce proceedings known as “discovery.” It permits each side to discover pertinent information about the other side to prepare the legal case. The idea is that a fair exchange of information enables the lawyers, mediator (and potentially the judge) to have a complete understanding of the nature and extent of the marital assets, earnings, debts and relevant behavior/emotional events so that a fair resolution of the case can be attained. Electronic discovery can include obtaining hard drives, text messaging, digital images, copies of Facebook pages (and history), and more. Also, destruction of either hard evidence or digital evidence is impermissible and can lead to sanctions by the court. So, if you are thinking of a custody battle and are concerned about that selfie you posted of you careening down the road drinking beer while your baby is haphazardly strapped into the car seat, taking it down from your Facebook page (along with the caption “Had a great time Sunday afternoon at Baby Time Bar”) isn’t going to help you if your spouse’s attorney has an e-discovery savvy lawyer. And, in this day and age, most of us are e-discovery savvy.
In contested family law cases, I have both successfully utilized and had my clients fall prey to unfortunate digital communications. In one custody battle, a mother allowed her pre-teen children access to her posts on dating forums engaging in conversations about the sexual exploits of the forum members. The understandably incredulous judge asked the mother on the witness stand, “You said what on the Internet? You let your kids read that?” It calls to mind my thoughts when Madonna published her nude photo book, “someday your kids are going to grow up and see you like that?!” Aside from the “ugh factor” it raises real questions in court about the ability to parent. In another case, I was able to present evidence of an extra-marital affair because the husband had taken selfies of himself and the paramour – lounging in the jammies in the bedroom of the marital home while the wife was away at work. This led to a generous alimony agreement for my client.
E-discovery can lead to recovery of your passionate (and you thought deleted) text messaging history with your paramour, or your Facebook post (“Exciting news! I finally did it – emptied out my secret savings account and invested in a coloring book kiosk at the Mall!”) What you say that is overheard or seen by others can get you in lots of trouble. When you post to Facebook, everyone overhears and sees everything you say.
The take-away here is to obviously think before you type, before you snap the shutter, before you hit “send” and before you post that photo of you and your paramour away on the romantic weekend you told your spouse was a mandatory office retreat. All of it is fair game. A rule of thumb question might be “Would I want my judge to see this?” If the answer is “no” don’t post it, text it, email it or take a picture of it. I think that if you don’t want your spouse to see it, then you don’t want the judge to see it either.
Take a lesson for me. Privacy can be a good thing. It can certainly make all the difference in your divorce case.