A watchword is, nowadays, a word or phrase expressing your core aim or belief. At one time, though, a watchword meant a password given to the guard on watch. Both meanings are useful in today’s family law cases, since the texts you send, the posts you write, and the pictures you share can all be used as evidence against you .
Watch Your Words, Especially Online
Watch your words on display. As the American Academy of Matrimonial Lawyers (AAML) says, more than 80 percent of family law attorneys find the number of cases using social networking evidence has dramatically increased.
Which site yields the greatest grist for the divorce mill? AAML crowns Facebook as “the unrivaled leader for online divorce evidence with 66 percent [of attorneys] citing it as the primary source.”
What kinds of words do family law attorneys seize on and use against their clients’ adversaries? Consider the case of Dorothy McGurk, all set to get the marital home and $850 a month for life after claiming to be disabled from a car crash. Too bad she posted pictures on Facebook of her belly dancing.
A judge (no fan of belly dancing or being lied to) vacated the divorce settlement after her ex-husband’s attorney showed the posts, says The New York Daily News. She also lost the marital home and was ordered to pay her ex-husband 60 percent of the home’s value. Those were some pretty pricey posts!
eDiscovery
Culling social media and texts is so pervasive in family law now that the new term, eDiscovery, has been coined to classify it. eDiscovery is the unearthing of any electronic media nuggets:
- YouTube videos
- Social media posts
- Instagram pictures
- Short Message Service (SMS) texts
- Pinterest collections
- Electronically stored records
- Online accounts, user boards or messaging programs
- Electronic subscriptions
As the Association for Intelligent Information Management (AIIM) says, just about anything stored electronically is fair game for attorneys as they search for evidence. AIIM may advise companies on how best to store, catalog and encrypt information, but individuals need to follow similar strategies to safeguard their own information.
AIIM recommends having a business policy that efficiently, permanently and quickly disposes of unimportant information while safely preserving the important data. Mimicking that in your private business will help you keep your electronic exposure to a minimum.
What About Your Friends?
One seldom-considered aspect of social media is the friend-of-a-friend cascade of connections. The National Law Review cautions that “if a spouse’s social media contact (or “Friend”) decides to re-post or re-share a photo or text post, those secondary posts might then be seen by an ex, in which case they can legally employ them in court.”
This does not suggest you need to be friendless in the realm of social media. Use sensible precautions to limit your exposure to true friends. Regularly update your privacy settings and scan your history for anything that you would be embarrassed to defend in a Virginia courtroom.
One bright spot: no court will permit evidence obtained fraudulently. Your wife, ex-wife, or her attorney cannot open a fake account at Facebook or other social media platforms with the hope of friending you and tricking you into accidental exposure.
If, say, you sent a Snapchat nude image to someone you thought could be a possible romantic partner (but is actually your ex-wife determined to get dirt on you), she cannot use that against you in a legal proceeding. Sure, you may be embarrassed that the image is out there or that she could spread it, but it is not evidence.
Spoliation
If you are concerned about your own posts anywhere in the electronic world, you may be tempted to go through and systematically remove them. Do not do it. This is legally called spoliation of evidence. The legal logic is simple:
- If you destroy or alter evidence before or during discovery, the court will assume from whatever remains of the evidence that the evidence worked against you and in favor of the opposing party.
Say you take down a Facebook post because it showed you drinking alcohol and you know your boss frowns on that. If, though, the photo included female coworkers, your wife could claim you tried to conceal an affair. The judge uses “spoliation inference” to cast your action in the harshest possible light against you.
You have every right as a private citizen to curate your online presence, up until the moment when you are headed into a family law matter. At that point, preserving evidence is important for two reasons:
- Legally you must, and
- Morally, you are displaying your innocence
Don’t Try to Be Clever
So, given everything we have said about the dangers of eDiscovery, should you put on your Junior Detective badge and try to pry secrets from your wife’s or ex-wife’s accounts without telling your attorney?
No.
You will be violating federal wiretapping laws if you try to get past her passwords. If she sends out pictures or posts wild claims on Facebook, those are fair game. If you hear her receive a series of pings and she taps out rapid texts on her password-protected cell phone, those are hers alone. You can ask; you cannot demand.
You can inform your attorney about your suspicions, but given the easy and open access to social media, a smart, efficient family law attorney will harvest all the fruits of those very public fields before worrying about search warrants for cell phones.
Contact The Family Lawyers for Men ONLY!
To keep your business private, telephone your offices at 757-383-9184. Or, if you feel comfortable doing so, contact The Firm For Men online. We will be happy to discuss your family law matter confidentially and privately.
