Social Media and Divorce

Social media is ubiquitous. Facebook, Twitter, Instagram, and Snapchat are great ways to keep in touch with friends, the news, and events of the world. However, posts on social media can become major sources of evidence in a divorce case. Social media and divorce in NJ are almost never a good combination, and clients would do well to be discrete and stay off social media when possible during a contested divorce case. Below are the top six things to be aware of regarding social media and divorce in NJ.

You might regret some of the things you have posted on your accounts – or perhaps the photos that someone has tagged you in. But, if you attempt to delete your account or information on it, then the judge or jury can make a negative inference about the kind of evidence that you may be trying to hide. Spoliation means the destruction of evidence. If evidence is not produced or shown to have been deleted, then the factfinder can infer that the reason the party deleted the document was because the document would harm their case.

Also, it's often too late anyway. Anything that gets posted online is generally there forever. Third parties can take screenshots or download whatever's been posted. This can be particularly damaging if you try to delete evidence – imagine deleting something, then having testimony introduced that first, you deleted it, and second, the actual evidence being introduced. This is obviously detrimental to your case.

Do not do the opposing party any favors. Some clients have posted things so frequently and openly that they have done the work of a private investigator. Posts on Facebook are time-stamped, and many have the option of revealing your location. Therefore, if your official position is that you did not go to Mexico last week, then try not to post a status on Facebook revealing your location somewhere in Mexico. If you are arguing that you need spousal support because you are unable to adequately support yourself, it makes sense not to post photos showing off your latest ski trip. Even if your friends or a family member paid your way, you have to remember the optics of such a post – appearance is everything in a contested lawsuit. Resist the impulse to document the entirety of your life online.

This is crucial for custody cases and another example of why social media and divorce in NJ just do not mix. Do not use social media to vent. Openly complaining about what your spouse does, criticizing their parenting skills, or just flat-out bad-mouthing them does not engender you to the courts. Of course, bad-mouthing the other parent on a site that your children are on is detrimental. Courts do not like parents trying to persuade their children about the merits of either parent. In fact, if there is evidence that you have tried to alienate your child from the other party, the courts could side against you entirely and award custody in full to your spouse. It’s difficult going through a divorce – but try to vent with a friend over coffee, and not on Twitter.

Many clients have assured their lawyers that there is nothing bad on their social media accounts, only to be eating their words when the court orders them to turn over their log-in information. New Jersey courts can require parties to turn this information over if there is believed to be the possibility of credible evidence in the accounts – even in your private messages. Furthermore, there are cases where someone ‘defriended’ their spouse, thinking they could continue to post photos and statuses with impunity, only to find out that a mutual friend had been funneling evidence to the other side.

Given how freely people post online and the treasure trove of evidence it can reveal, it is tempting for someone to use their spouse’s accounts against them. If you do not have permission to access your spouse’s online accounts, then you should make no attempts to ‘hack’ into them – even if you have a pretty good idea of their password. Logging into your spouse's accounts without their knowledge or permission can result in criminal liability for you. There are multiple gadgets that allow you to hack into someone else's email account. The law is somewhat unclear about the liability for someone who logs into another person's personal email account if they share use and ownership of the computer in the residence. One court has found that there was no reasonable expectation of privacy and that since emails were stored later on the server, then there was no violation of federal or state wiretap laws. However, obtaining access to this information without permission is extremely risky, and could subject you at least to the court's disapproval, if not criminal liability.

Think about what your message is to the court. The problem with social media and divorce in NJ is that so often, parties portray an inherently different sort of lifestyle online than one they are trying to portray to the court. For example, if you are in a custody fight, then the photos you post should suggest that – family days out, photos with your children, family-friendly activities. You should not post nights out with friends in bars, foul language, or dirty or racist jokes. It is also a bad idea to post photos of your new significant other while you are still married. Evidence that you have signed up for dating sites – even when you are legally separated – can be viewed negatively in a custody matter. All of this can be used to impeach your credibility about the kind of lifestyle you want to model for your children.

If you have questions about the role of social media and divorce in NJ, call The Law Offices of Peter Van Aulen at 201-845-7400 today, for a consultation.