What You Have to Know

While most of contemporary social media news seems to be about politics, the influence of social media on divorce disputes cannot be denied.

It seems that not a day goes by without social media apps like Facebook or Twitter being in the news. technology has had a tremendous obvious impact on the divorce litigation area. In Massachusetts, for example, private conversations between husband and wife are generally disqualified as evidence in litigation under GL c. 233, §20.

However, this section of the Massachusetts Statute applies to conversations, written email communications, text messages, and other written communications between spouses are routinely accepted as evidence in divorce cases. Social media posts that are neither oral nor private are a fair and often fruitful evidence game in divorce disputes.

In the context of COVID-19, where individuals and families are restricting social gatherings and events outside the home, social media is widely used as a contact method. And the excitement of making complaints or sniffing out a future ex-spouse on social media is great. It only takes a moment and the touch of a screen to create an exhibit for the court to consider in your divorce case.

Here are six tips for avoiding (or creating) a Social Media Evidentiary Minefield

  1. Never write something to someone that you do not want to read out loud in court.
  2. Follow the “24-hour rule” of communication. If your spouse or anyone else sends you something via email, SMS or Facebook Messenger, or posts something on Facebook, Twitter, LinkedIn, Reddit, Pinterest, Tumblr, etc. that lures or warrants a response from you, wait 24 hours, before replying if possible. If the communication is a general complaint or gossip, it is important to avoid it. But if it’s something you need to address, like text arranging childcare, be polite and as specific as possible. Ignore content that is meant to be embroiled in a negative exchange and focus on the essential subject of the communication, such as the time and place for a depot transfer, and don’t get the bait on non-essential content.
  3. Do not post information about your divorce on social media. Just do not. This includes posts like “I had a great day in court today, my lawyer really wiped the floor with the other lawyer”. This example may sound silly, but it does happen that people post such messages every now and then. It can backfire if attempting to negotiate a settlement later down the litigation route. Such posts can also be used against a person who is later filled in the light of a person who enjoys beating up the other spouse – by proxy. Such posts can be very useful when the beaten side uses the image that the other side is a bully and there is a question of whether a joint parenting agreement between the attacker’s spouse and the victim’s spouse is warranted.
  4. Don’t boast about new acquisitions. Bought a new luxury item? Great, don’t bow down and take a picture and post this picture on social media forever for your new best friend. It may seem cute at the time and may be completely innocent, but it will definitely show up at the next trial and the next and the next. In a nutshell, you may have paid more legal fees explaining the social media faux pax than the item cost.
  5. Disabling extended family members (in-laws) on social media. As far as you know, they might be the nicest people in the world, but the old adage that “blood is thicker than water” is more accurate in the divorce dispute than in any other context. Before you knew it, a conversation you had with a parent-in-law via email, text, etc. was turned into an unrecognizable story in which you turned yourself into a Bond villain looking to rule the world.
  6. Remember that social media sources can be sent a subpoena for record keeping. It can be awkward, but email, text messages, social media posts, etc. are similar to tattoos. You can delete them, but often they still exist on the airwaves of the internet and may be retrievable.
  7. Don’t train the other side to stop posting something they shouldn’t be posting. Napolean allegedly once said: “Never interrupt your enemy if he makes a mistake.” For some reason, social and electronic media formats often reflect the true personality of a person who is able to hide certain personality traits when it is best for them to do so. If you see something that concerns you, make your lawyer aware of it.

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