Reviewing and analyzing opposing party’s e-mails, text messages, Facebook posts, Tweets, etc. is part of a family law attorney’s daily job. Strewn about printouts of these posts and Tweets account for much of the paper stacked up on my desk. Every day, I review the printouts to help later prove physical, mental, or social health concerns, disobedience to court orders, lies, and other things relevant to a specific case. And when I read most posts, I wonder, “what was this person thinking when they posted it? Didn’t they know that this might potentially cross in front of the eyes of their judge—or even just me for that matter?” It also frightens me to know that most of my clients have social media accounts or the ability to text or e-mail their ex or soon-to-be ex in the heat of passion. I know the attorneys on the other side also have a stack of Facebook and Twitter printouts on their desk from my clients. So here’s some advice on social media and documented communications with others that will serve you well:
“Delete and Deactivate.” This is a simple way to make sure that social media is not used against you, if you’re up for the “challenge.” Remember, you can keep in touch with others you care about by calling or meeting up with them. Deleting your social media accounts might even alleviate some stress in your life that you weren’t expecting.
If you aren’t willing to delete your social media accounts, think before posting. Think, “if I post this, would it negatively impact me if it was provided to the court to review?” “Does it say something about my character, does it show any instability, poor parenting, or immaturity?” As writer Ashley Cooper uses as an example in her social media article, “posting about your late night out drinking wine might not be smart to discuss with a custody matter pending and children are involved. Hey, Mommies, everyone likes a good glass of wine once in a while, but during your divorce is not the time to post about it.” Social Media and Divorce: Why You Should Put the Keyboard Down and Log Out, Huff. Post, Dec. 7, 2015. Cooper is right. Have fun (to a degree). Just don’t post about it.
Also, don’t think you’re protected by not being “friends” with your spouse on social media accounts. There are likely tens or hundreds or maybe even thousands of others you are friends with which allows the content to be shared beyond your control. Not to mention, Facebook and Twitter evidence can be subpoenaed, which means the company can be legally required to hand over everything to the court. Think of social media as both public and permanent. Even when deleting previous posts or photos, a cached version is still receivable through a search engine.
Do not discuss your case. While most things in your case are in the public forum, some things—for instance mediations—are not. Not only can you get in trouble for posting something that was discussed in a private forum, since you broke confidentiality, you could also be opening the door to making everything discussed at that meeting public. Some juicy tidbit or embarrassing fact you wanted to stay private may now be open for discussion with the court. For instance, a settlement offer you were willing to make at that meeting could be “in-play” in front of the court. The court not only frowns upon you discussing your case publically, it be used against you in custody proceedings. Along the same vein, do not talk about your spouse or ex-spouse. In no way can this work in your favor, and instead it will be frowned upon.
In addition to social media, emails and texts can sometimes be subpoenaed or even simply printed out and are admissible evidence in the court. Do not put anything in an email, in a text message, or anywhere online that you don’t want the judge to read. Take 10 minutes or longer before responding to any text or e-mail unless it’s an emergency. Calm yourself, walk around, and consider what is at stake. The court favors a calm, collected, and neutral individual, and your opinions will be more highly regarded if you present yourself as someone who thinks logically in a stressful situation, especially where children are involved. In the same way you think about social media posts, if you aren’t sure whether it’ll be used against you, leave it out or ask your attorney.
If you are looking for an attorney who is experienced in dealing with dissolution and custody proceedings, call Arnold, Rodman and Kretchmer, PLLC today at 952-955-8008 to schedule an initial consultation.
Written By: Associate Attorney Alison Grafsgaard