Facebook posts and text messages are a significant and growing trend as evidence in litigated divorce cases. Litigants no longer have to convince the judge that their soon-to-be-ex-spouse was committing evil deeds. Divorcing parties are more often divulging their inappropriate behavior to the judge themselves.
Imagine a custody battle and during which concerned and dedicated mom’s Facebook post is presented to the court showing her drunk, scantily dressed and surrounded by her boyfriend and ne’re do well partygoers while mom was supposed to be home helping Susie with her homework.
Imagine a court battle over an alimony issue via text message in which the high wage earner admits to concealing cash receipts or that spouse sends the other a compromising picture message that has now become evidence in the divorce. In either of these cases and innumerable others, the fat lady is singing her heart out.
According to recent surveys conducted by the American Academy of Matrimonial Lawyers, 81% of the members have seen an increase in the use of social networking sites as evidence in divorce cases over the past five years. Even more significantly 94% have seen a rise in the use of text messages as evidence over the past three years.
Ken Altshuler, President of the Academy of Matrimonial Lawyers, explains in his article in the Huffington Post, “evidence in writing is always the most effective proof in demonstrating that someone is being dishonest, contradictory, and lacks credibility… Once you can effectively question someone’s credibility with their own written statements, then everything else can be doubted about them. [A]ny time you put something in writing, automatically assume that a judge will eventually read it.”
“Before the Internet and cell phone era, divorce cases involved more of the old-fashioned “he said, she said” disputes that often hinged on phone calls and verbal conversations.
Texts, e-mails, and Facebook posts have obviously removed a great deal of the ambiguity from the process. Text messages can often be the most incriminating pieces of evidence, because they are so immediate and easy to compose. Unique among other writings that are prone to be drafted and revised, texts are composed at the spur of the moment, resulting in pieces of evidence that can be raw, uninhibited, and highly incriminating. In many ways, texts can be the written equivalent of a heated discussion, but without any of the doubt afterward about the exact words and language that had been used.
In a legal situation, having a full transcript and a history of texts creates a potential insurmountable mountain of evidence against someone. Having someone’s own specific words, combined with a clearly defined and recorded timeline, provides extremely powerful material for a devastating cross examination.”
The best attitude you can adopt during your divorce is to remember that you once loved each other, you will always remain the parents to your children and there is no down side to treating your soon-to-be-ex-spouse with respect. However, if that path is not possible be mindful that anything that you put in writing has the potential to be used as evidence against you somewhere down the line. Restrain your impulse to respond or brag and remember that posts on social networking sites and cell phone communications remain in perpetuity.