The Social Media Wars in Family Law Litigation

 

            Social networking sites, e-mail, and text messages are used constantly to obtain evidence in family law actions.  As such, it is important for any person engaged in a family law case to consider taking the following precautions as it relates to social networking:                     

 

TIPS FOR SOCIAL NETWORKING SITES

 

            1.         Maximize Your Privacy Settings.  You should make sure that your privacy settings are not open to the public.  Also be weary about even having privacy settings that are set to “friends only”.  It is often people that are considered friends who provide evidence to the opposing side. 

 

            2.         Be Conservative On Your Postings.  You need to think about what you are posting before you post it.  Ask yourself, could the other side use this post against me.  Blatant examples of what not to post including adult party pictures (do not post pictures of your friends and/or you drinking, smoking, dancing erotically, etc.; do not discuss the case online; do not post negative comments about the judge, the attorney, the spouse or anyone else involved in the case).  My favorite rule of thumb is if it is not something you would be proud of if your mother discovered it, do not post it!

 

            3.         Watch Social Media Check In Applications: It is generally not a good idea to have GPS tracking media active during family law cases.  These types of media often automatically post to certain sites and may be used against you in various ways, especially in highly contested child custody or alimony cases. 

 

            4.         Farmville Can Hurt You: Games that automatically post to your social media sites like Facebook can be used against you.  For example, if you are unemployed and your spouse is looking to have you held in contempt for failing to pay your child support, proof that you are playing Farmville all day, rather than seeking employment, can be detrimental. 

 

            5.         Change All Your Passwords: Often noone knows you better than the other side in a family law case.  They often know every website you visit and every password you have created.  That said, immediately change all your passwords for every social network site you are on (Facebook, Foursquare, Twitter, LinkedIn, My Space, etc.)  When you change your passwords, do not use something the other side can easily guess.  Remember, they know you well.  Your child’s name, pet’s name, etc. are not good passwords.  Use something that has no relation to your everyday life and would be hard to guess.

 

TIPS REGARDING E-MAILS

 

            1.         Obtain a Separate Litigation E-mail Address: The other side likely knows your e-mail address and your password, and while they should not be doing so, they may be monitoring your e-mail account.  Additionally, there has been a lot of discussion about whether or not a person has an expectation of privacy for an e-mail account.  The best rule of thumb is to create a separate e-mail account for your litigation case.  All e-mail with your lawyer and the other side should go through this e-mail address.  Do not use this e-mail address while at work, at a hotel, a friend’s home, public library, etc.  Using public places to access your e-mail has the ability to make the e-mail admissible in court.

 

            2.         Change Your E-mail Passwords: Immediately change all your passwords for every e-mail account you have.  Do not change passwords to joint e-mail accounts, if any exist-just stop using that account.

 

TEXTING AND CELLULAR PHONE TIPS

 

            1.         Minimize Texting: We often text without thinking, especially to those we consider friends and family.   Too often, these friends or family members either purposefully or inadvertently give this information to the other side.  Therefore, think before you text, and keep the texts during this difficult time to a minimum.  Also remember, the other side will happily turn over any nasty texts to the Court.  So always, always, always be respectful and courteous when texting or e-mailing the other side, no matter how nasty their e-mails or texts are to you.

 

            2.         Reconsider Your Cellular Phone Plan: If you have a family plan with the other side, you may want to consider contacting your provider and getting a separate account for yourself.  If the other side has access to your texts, call records, and tracking records, this information may be used as evidence in court against you.  Also, it is a good idea to use a provider that does not maintain records of the texting that you send and/or receive.  Certain carriers keep texting records.  Check with your carrier.  If they keep these records, you may want to consider switching.  Also, certain providers provide detailed invoices that show every phone call you make.  This is sometimes helpful and sometimes harmful.  Check with your provider to see what type of records they have and keep this in mind when using your cellular phone. 

                                                           

OTHER IMPORTANT TIPS

 

            1.         Be Wary of Spyware: Too often the other side plays dirty.  They attempt to illegally access your information.  While this is often a crime, it is often hard to prove, or not worth the government’s time to prosecute.  Even though a court should exclude all evidence not legally obtained, this is not always the case.  So just be careful and aware that this could occur.

 

 

            2.         Consider Your Own Actions Carefully: Consider your own actions.  Make sure you are not illegally accessing information.  If you know the passwords to the other party’s accounts, you know that person no longer gives you permission to look at their accounts.  Accessing these accounts without permission may be a crime.  So be careful. 

 

            3.         Electronic Evidence Is Not Easily Destroyed: Electronic evidence is often recoverable, even if deleted, especially through the use of forensic experts.  Thus, if you are required to produce these documents, and you attempt to hide them, if they are discovered, your credibility with the Court is shot.  A better practice is to simply not create the electronic evidence in the first place.  By following the steps listed above, this should help you in that regard.

 

            4.         Changing Account Numbers: Certain information that you one wanted the other side to have, you may no longer desire them to have.  Consider all accounts that the other side has access to (i.e. account numbers and security codes for bank accounts, brokerage accounts, credit cards, cellular phones, etc.)  You may wish to speak with your attorney regarding whether it is prudent to change these numbers.  But remember, it is usually not a good idea to change joint account numbers and security codes, especially with consulting your attorney and the other side first.  Also keep in mind that any activity performed in the joint account can be introduced as evidence before the judge.  

 

            5.         Keep a Calendar or Log: You may remember everything being posted, texted or said at that moment.  Maybe even days or weeks later.  But family law actions can take months, even years, to resolve.  Therefore, it is important that you keep a calendar or log of the events and statements that you believe are important evidence for your case.  Keeping a calendar or log can go a long way to establishing that your recollection or memory of the events is accurate, and make your attorney’s job easier (thus costing you less money in attorney’s fees and costs). 

 

            Our firm assists clients with their family law needs in the South Florida area.  If you have any questions regarding a family law matter, please feel free to contact our firm. 

 

Penny Taylor-Miller, Esq.

Cindy S. Vova, P.A.

8551 W. Sunrise Blvd.

Ste. 301

Plantation, FL 33322