With the development of social media, came a new and innovative way to provide updates on our lives, jobs and everyday activities. However,with this expansion came a new way for lawyers to gather evidence pertaining to their family law cases. Information or pictures you or your spouse post on social media can help or hinder you in your divorce case. It is important to discuss your social media posts with your divorce attorney to ensure that you are staying protected in the online realm.
Although these statements or posts are made out of court and most likely will be categorized as hearsay, they will typically be found to fall under an exception to the hearsay rule. A social media post may be admissible under the admissions exception to the hearsay rule. Such exception is defined as “a statement that is offered against a party and is the party’s own statement” (90.803(18)). Social media posts made by a party have fallen under this exception and have become admissible in court. Due to their value and admissibility, it may be imperative in your case to demand these social media posts through a discovery request. Courts have routinely held that social media information is discoverable. However, these requests must be relevant to your case. Requesting information for the sole purpose of embarrassment or harassment is irrelevant and the opposing party will not be required to provide this evidence. One pitfall that you may come across with such evidence is the authentication factor. When presenting evidence to a court, they must be authenticated for accuracy. In order to authenticate social media posts, the party who made the post must admit or deny the knowledge and accuracy of the post. If a party denies the post, the court may require further authentication. This may be accomplished through circumstantial evidence; however, this is a very sensitive process. The discovery and admissibility of social media posts can be difficult, it is important to employ the help of your lawyer so they may direct this process efficiently.
When these posts may be used in your case, depends on the subject matter of each post. For instance, if your spouse has posted pictures of a new car, or sale of an old vehicle it is important to note if they have accounted for such sale or purchase in their financial affidavit. Such nondisclosure could result in punishment by the court, and further could amount to a different equitable distribution award as more assets have become available. In contrast, if a party is posting pictures or status updates about large gifts or vacations they are taking; a party may use this as evidence of dissipation of funds. Such dissipation can be taken into account during an equitable distribution determination. It is important not to post or discuss your finances online and hold off on making large sales or purchases during this time.
Most commonly, social media posts are used in child custody actions. A common post made by a party, is one where they vent their frustrations about their coparent online and divulge too much information. An emotion filled status update can reflect negatively on your ability to promote a positive relationship between your coparent and the child, and have a positive relationship in the child’s best interest. Further, pictures of a parent in compromising positions such using illegal substances or consuming large amounts of alcohol in the presence of their children can be used in court. These items can be used to display the negative effect you or your spouse may have on your child’s physical or mental well-being.
It is important to limit your social media activities during such a time and keep matters private. Understand how such posts can affect your case and take proper precautionary measures. In return, if you see a post made by your spouse that causes concern, bring this to the attention of your attorney and discuss how these may be implemented into your case.
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