The world is changing rapidly these days, and the legal system in the U.S. is changing rapidly too. In just the last decade, same-sex marriage became legal in every state, and marijuana became legal in a number of states. In many respects, however, the law has not yet caught up with 21st-century technology, so lawyers and judges sometimes have no law or legal precedents to provide guidance in the new legal territory of surveillance devices, GPS devices, cell phones, and social media sites.

Generally speaking, almost all of us rely more on technology than we did even thirty years ago. In the 21st century, millions of us share ideas, pictures, videos, and personal details about our lives on social media sites including Twitter, Instagram, and of course, Facebook. The impact of social media on every aspect of our lives is undeniable. Lawmakers and courts are now confronted with social media-related questions and issues that simply did not exist in the 20th century.

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Criminal prosecutors routinely study the social media pages of crime suspects and their associates for photos and status updates that can be used as evidence in criminal prosecutions. The attorneys for defendants in personal injury cases look for evidence that a plaintiff is not as disabled or injured as the plaintiff claims to be. In family law cases, depending on the nature of the dispute, evidence gathered from social media pages generally serves to discredit the opposing side’s character or honesty. Attorney Brian Bayati warns, “During family law litigation, you should not place a post on social media if you have any reservation about the opposing party or the court seeing that post!”

Dean Tong, a Diplomate with the American Board of Forensic Examiners, cautions, “As an expert witness in family law cases who is on Facebook and Twitter and has been for some time, and who has a combined Master’s Degree in Law and Psychology, I can tell you any post on social media can be introduced into evidence on a court record by an attorney and used against a litigant, negatively, in family court.”

IN FAMILY COURT, HOW CAN SOCIAL MEDIA HELP OR HURT YOU?

Family law and social media can both be embarrassingly personal, and – like letters, phone calls, and emails – social media posts can indicate that a person may be angry, vengeful, out of control, or potentially dangerous. But for some people in some family law cases, social media evidence is helpful. For example, if your updates and photos generally convey that you are a devoted and responsible parent who spends quality time with your child or children, that’s obviously helpful in a child custody dispute. A Facebook page that depicts you as a “party animal” or as a “thug” is clearly not going to help you in family law court – regardless of the precise nature of the dispute.

Benjamin D. Moore, Esq., a family law attorney with Mayerson Abramowitz & Kahn, LLP in New York City, says, “Social media has shifted so much in our society, and the field of family law has been affected like everything else. Depending on the posting habits of an individual, the world can know when a marriage is strained, new “friends” arrive on the scene, and so much else that was once private. Also, adverse parties in a disputed case can find out things about their spouses, such as increases in spending or a new boyfriend/girlfriend, that can be used to their advantage in negotiation or litigation.”

If you are considering – or anticipating – a divorce in California, you might want to revise your social media pages before you take any legal steps. On either side of a divorce, posting or “tweeting” something you think is innocuous might come back to hurt you. Many divorce lawyers recommend refraining from social media entirely as soon as divorce papers are filed. You may want to discuss particular details with an experienced divorce lawyer – in Southern California, for example, an Orange County divorce attorney can address your concerns regarding your own social media accounts and their potential role in divorce proceedings.

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Quite candidly, Facebook provides a false sense of security with its privacy settings. If you are divorcing, you need to know that nothing you post online is ever really one hundred percent “for sure” private. Your spouse’s attorney may legally be able to acquire even deleted posts and use that information against you. If you read all of Facebook’s fine print closely, you’ll see that while the privacy settings protect your posts from others using Facebook, there’s no absolute legal protection if a court or opposing counsel wants access.

HOW IS SOCIAL MEDIA IMPACTING CUSTODY DISPUTES?

Your children are another good reason to consider avoiding social media during a divorce or any other family law dispute. Courts in California usually order parents to refrain from speaking with their children about their divorce, so if your child or children have access to your Facebook page, the court may strongly disapprove – especially if there’s anything on your page about the divorce.

“One of the worst things you can do,” according to Chris Griffith of Split Simple, a divorce mediation firm with offices in Denver and Chicago, “is take to social media to vent your frustrations about a family court case. Comments from friends and relatives present an even bigger wildcard and will never be helpful in the process of resolving a divorce. Your spouse’s attorney can present threats or abusive comments that you make on social networks to the judge, who might take them into consideration in your case. The wrong words on social media can affect the terms of a divorce, impact visitation rights and more.”

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Provisions regarding a child’s social media activity are now common in parenting plans. Parents need to agree if their child or children should or should not be allowed to have social media accounts, and if so, how those accounts will be monitored. Parents with concerns regarding social media should make certain that those concerns are made clear to your attorney and addressed by the parenting plan.

WHAT ABOUT THE OTHER SIDE’S SOCIAL MEDIA PAGES?

The other party in a family law dispute may have evidence on his or her own social media pages that your attorney can use on your behalf. If the page is public and you have direct access, there’s no reason why you can’t print out the material yourself and share it with your attorney. If you don’t have legitimate access, make sure that your attorney requests copies of the other side’s social media pages during the discovery process.

At this point, a word of caution: Never attempt to “hack” into your spouse’s accounts during a divorce if those accounts are not public or if you have been blocked. Creating a false account and identity to “friend” your spouse is also a really bad idea. Your lawyer – for example, an Orange County divorce attorney – can probably obtain legally whatever information will be genuinely useful in court. Any strategy of deception is likely to backfire on you and bring the court’s disapproval.

Social media’s impact on family law and the institution of marriage cannot be underestimated. In a recent survey of two thousand married people in the United Kingdom, one in seven participants admitted to considering divorce specifically because of what their spouses were doing on Twitter, Facebook, and Instagram. And back in 2010, 81 percent of the divorce attorneys surveyed by the American Academy of Matrimonial Lawyers said divorces, where social media evidence came into play, were on the rise.

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When you seek a divorce attorney these days, he or she may ask you for complete information about your social media accounts. If you anticipate an imminent divorce or any other family law dispute – and this cannot be stressed too strongly – it’s probably best to refrain entirely from Facebook and Twitter. Be extremely cautious even with emails and texts, because in a heated divorce, these will very likely be seen and read by your spouse’s lawyer(s) and by a judge. Family law proceedings, as mentioned previously, can be uncomfortably embarrassing and personal. Don’t do anything online to make things even harder for yourself.

Video Transcript:

In these modern times, I think we can all agree that social media has become a common part of most people’s daily lives, some people utilize social media in a social setting and others use social media in a professional setting. Regardless of how you use social media you should be aware that what you post on any form of social media can be used in a family law case. For example, we have seen cases where parties have contended in court that they were in one place and then social media revealed that they are not in that place. We have seen cases where parties have contended that children are with them and then social media has shown that children were not with them. In general, if you are involved in family law litigation you should be aware of the fact that what you post on social media can be used as evidence in your family law case. Either for or against you.

Also, be aware of the fact that what the opposing party posts on social media may be used in your family law case. With that in mind, be very mindful of what you place onto social media sites. Whether pictures or information, derogatory comments about an opposing party, lawyers, or even judges. We have seen examples of all. My recommendation to parties involved in family law litigation is if you could not post something in a pleading you should not post it onto your social media.

By: Bayati Brian

Brian A. Bayati has been named three times as a top Orange County divorce attorney by OC Metro Magazine. He graduated from the University of California, Hastings College of the Law, where he was a judicial extern to the U.S. Court of Appeals (9th Circuit) and a public service mediator. Prior to founding Bayati Law Group, he was part of a civil litigation firm with offices across the nation. Bayati Law Group focuses exclusively on the practice of family law.