Email. Texting. Facebook. Instagram. Any one of these methods of electronic communication can—and have—been
used as evidence in court. For people going through a divorce, you should
expect that your electronic communications will be scrutinized.
Many individuals going through a divorce freely text, email and status-update
without considering the strategic risks and dangers that come along with
these types of electronic communications. Before you post your next Facebook
update, consider some interesting stats from the American Academy of Matrimonial Lawyers:
92% of AAML divorce attorneys cited an increase in cases using
evidence taken from smart phones during the past three years.
In the same survey, 94% noted an increase in
text message evidence.
81% of AAML members say they have seen increased use of
evidence from social networking websites during the past five years (with Facebook being cited as the primary culprit).
This post will cover what you need to know and do to avoid the potential
hazards of your electronic communications and how your communications
might be used as evidence in a family law case.
Act Like You Will Have to Defend Any Electronic Communication in Court,
Because You Probably Will
Every study on the subject and every association of attorneys who have
practiced in the area have come to the same conclusion: the use of electronic
communications as evidence in divorce proceedings is on the rise and it
won't be going away any time soon.
This rise in the use of electronic evidence, however, generally has not
been lamented by divorce attorneys. In fact, it has made our jobs easier
by providing a virtual treasure chest of potential exhibits and evidence
for trial. Therefore, in all likelihood, if you choose to use electronic
communication during your divorce, you may have to explain it in court.
Use Electronic Communication Deliberately and Sparingly
Given this state of affairs, it advisable for any spouse going through
a divorce proceeding to consider the following general principles before
sending any electronic communication - because once you hit the send,
post, or tweet button, it is permanently backed up and accessible to your
spouse and their attorney.
Presume that every communication will be entered into evidence, and only include language or information that you would like your judge to see.
Don't send any text message, Facebook status update, or e-mail in a
moment of anger. These can be taken out of context in divorce proceedings and used to paint
an untrue and unflattering picture of your personality.
Prepare a first draft of any e-mail concerning the divorce (or that will be sent to your spouse) and review it to ensure that it
accurately conveys your intentions and demeanor and cannot be misinterpreted.
You don’t need to give up your Facebook, smart phone and email accounts
entirely, but while subject to the scrutiny that comes with a divorce
proceeding, it is advisable to use them only with care and purpose.
How Will My Electronic Communications Be Used in Court?
The potential uses of electronic communications are endless. However, in
the past, e-mails, tweets and status updates have been used to:
- Indicate a person's state of mind
- Show where a person was at a particular day and time
- Show collaboration between two parties
- Contradict statements made in court or in pre-trial disclosures
For example, if a spouse has testified to the court that they are undergoing
required substance abuse classes or are controlling their alcoholism,
an online picture or statement providing evidence of drinking might be
used to contradict that testimony.
Similarly, there are reported cases of a spouse seeking alimony who had
her statement that she was unable to work contradicted by job interview
requests posted on LinkedIn. Photos of large purchases or status updates
indicating frivolous spending have also been used as evidence of one spouse
lacking financial stability or wasting marital assets.
Custody proceedings are also implicated, as online status updates and compromising
pictures have provided evidence of improper parenting skills or an unstable
The list of examples goes on, but it is safe to say that there is almost
no aspect of a dissolution proceeding that could not potentially include
the use of electronic communications as evidence.
What About Online Privacy?
Courts have been reluctant to extend any meaningful privacy protections
to online information. Some have even concluded that there is no reasonable
expectation of privacy on social networking sites at all. Whatever expectation
of privacy an individual is entitled to, however, is (for all intents
and purposes) lost when divorce proceedings begin.
A number of courts have concluded that divorcing parties may be granted
full access to their spouse's Facebook and MySpace accounts (including
private and deleted data); this access can even include turning over passwords,
usernames and logins for social networking sites to a spouse or a spouse's attorney.
Because of these flimsy privacy protections, it is best for individuals
to restrain themselves before posting private information online rather
than seeking recourse to the courts after it has already been made public.
Are There Any Limitations on the Use of Electronic Communications In Court?
There are some limitations, but they are sparingly applied.
The communications must be authentic.
For example, the Washington Rules of Evidence require that any piece of
evidence (including electronic communications) be authenticated. In the
case of electronic communications, this generally means that it must be
shown that you are the person that actually sent or posted the communication
in question. Therefore, posts made by another person using your online
account or fraudulent posts will not be admissible against you.
Unlawfully acquired communications are inadmissible.
Similarly, it is impermissible for stolen or unlawfully intercepted electronic
communications to be offered into evidence. For example, if your spouse
hacked into your email account or smart phone, the information obtained
likely would be inadmissible. Therefore, especially because courts are
very willing to admit electronic communications in every other circumstance,
it is inadvisable to use unlawful or questionable computer practices to
dig up electronic dirt on your spouse.
For further information concerning electronic communication during a divorce,
you should contact qualified divorce lawyer.