No one can argue that social media has permeated every aspect of our society. Everyone from your youngest friend to your oldest relative communicates on one form of social media or another. As of 2017 a huge 81% of people had a social media profile of one kind or another. With numbers that huge it’s a safe assumption that the parties involved in a divorce will have one or even all of these types of accounts. And family lawyers will tell you the consequence is that documenting and presenting social media evidence is now a critical part of family law proceedings.
Ultimately, the statements on social media are often a doubled-edged sword: they are typically emotional, sometimes rash. One the one hand, social media is uniquely set up to be electronically preserved since it exists in a digital format already. What is said, posted, or streamed on social media now becomes a prime opportunity to illustrate negative behavior about an opposing party. Here’s an example: if one party claims that the other has a substance abuse issue, a Facebook album titled “Trashed Tuesdays” full of documented drunken exploits could certainly be useful evidence.
People are people, as the saying goes, and it’s often difficult, if not impossible, to get them to stop “knee-jerk” reactions to a baiting Facebook post, or to stop posting damaging or derogatory thoughts about the opposing party via social media.
Here is a family law version of the Miranda rights that will prove useful in a divorce (created by Greg Golden):
You have the right to remain silent – Anything you type can and will be used against you in your divorce.
You have the right to exercise “common sense” – good decisions are rarely, if ever, are the result of an emotionally-driven response. Also, the other party may be baiting you into such a response so that your perceived irrationality will be brought up in court, to your detriment.
You have the right to discuss an appropriate post/twee/message with your attorney before you let you emotions get the better of you and you send it – if you cannot talk to your attorney before sending such a post/tweet/message, then think about whether your attorney would approve of such a communication.
Do you understand the rights that I have just described? – With these rights in mind, do you still wish to send that post/tweet/message?
If you’re investigating another party in a divorce, what types of social media sites and applications should you search? Research shows that there are over eleven different applications that have over ten million monthly users. But, for the sake of clarity and for this example we’ll narrow the applications to: Facebook, Instagram, Twitter and Snapchat.
It’s important to understand that different sites and user profiles have different levels of security and different levels of “publicity”. Knowing this make the point clear that discovery should be conducted as early as possible, even before a case is filed, if you think the opposing party may change their privacy settings and effectively block you from conducting your investigation.
For Facebook has several integrated applications: messenger, a mobile version of the website (an application), a desktop version (also an application), and version of the site access via a web browser. For conducting this investigation the most preferable version is to use the desktop application. From there you can print or save as a PDF every page you where you find interesting information. On Facebook consider exploring: Family and Relationships, Photo Albums, and Tags.