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Since the beginning of divorce in society, there have always been those seeking to keep the entire process as private as possible. Similarly, there are just as many parties who want the world to know everything, from the distribution of assets to custody arrangements to their ex-spouses darkest actions and character traits, both real and imagined. Sometimes this can be as simple as one person being more talkative or lacking discretion. However, this type of behavior is often part of a larger campaign to malign the other spouse as much as possible in the eyes of others, and gain an advantage in the ongoing litigation.
Such behavior was distressing enough when it amounted to an unhappy party bad-mouthing the spouse or giving out information in person “can you believe they changed the locks on me?”, but more recently, with the advent of social media, this type of activity has reached another level of concern entirely.
Whether it’s a Facebook post ripping into an ex over their affair, or posting embarrassing photographs or personal information, this type of behavior can have an enormous impact on not only the mental well-being of the attacked party, but the final outcome of the divorce as well. This can be the case even where the posting spouse has made the post “private” from other individuals (such as their ex), as most couples do in fact have mutual “friends” on their social media and professional networking accounts, and attorneys for the children or other side can demand them by subpoena.
In recent years, e-mails, text messages, Facebook posts and photographs from online sharing sites have been admitted as evidence in litigation. While this can be enormously useful (for example, where one party claims a lack of financial assets but then posts pictures of their expensive vacation), it can also be the downfall of one party seeking to make the other look bad. There have been a number of cases where the courts have started to crack down on malicious web behavior.
When one woman posted online regarding her attorney husband’s personal and professional shortcomings – not only on every social site she had an account with, but on professional websites as well, resulting in substantial harm to his income as clients were driven away – the court took this behavior into account when making a maintenance determination, noting that there was less to be given because she had harmed the overall amount of funds available. Similarly, where one parent posted serious insults and allegations regarding the other’s behavior (specifically, alleging promiscuity, along with a number of profanities), those actions were taken into account by the court in custody proceedings.
Therefore, a good rule for litigants to follow with social media during divorce is this:
Don’t put up anything that you don’t want to be the next “Exhibit A,” because someone is always watching.
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