Social media has undoubtedly changed the way we live.
About 70 percent of Americans use social media, many on a daily basis, according to the Pew Research Center. Social networks have become a place where people can share their lives with family, friends and even strangers. The proverbial “wearing of one’s heart on one’s sleeve” has gone digital, with people divulging their deepest feelings to the Internet – not to mention random commentary, photos and videos. However, once these types of personal posts are made, what happens if the poster is involved in a family law dispute, like a divorce?
Social media is a potential treasure trove of evidence for legal cases in such disputes. Just think of all the things you, your friends, relatives and friends of friends post, share or tweet. Think of what they shouldn’t have posted, shared or tweeted. Worse, think of that stuff being read out loud or shown on a video monitor in court. My guess is that, if you’re not trembling, your attorney is doing it for you.
Social media peccadilloes might not be all that lethal, however. The law imposes a few hurdles to protect the innocent, as the famous saying goes. Before a judge reads, hears or sees evidence, it has to be obtained, and its admissibility has to be established in court.
Also, a post might not last forever. You might be sure you saw it but can’t find it. While a subpoena to the social media outlet might seem easy enough, serving a subpoena outside your state can have obstacles. The media host might not save posts. And for policy reasons, the host might want to make it difficult to obtain the post.
Even if you can get your hands on the coup de grace of incrimination, it must be admissible in evidence. Admissibility requires authenticity and relevancy. Authenticity means the post is really a communication or accurate depiction of the other party. A picture, for example, must have some measure of reliability that it depicts the time, place and circumstance purported by the picture. Relevancy means the words, picture or video must have some probative value for the issues at hand. If the case involves the parties’ child or children, the evidence must show an actual or probable impact on the child. A parent having a few drinks is not a big deal. Do it when the child is in the parent’s care, and the issue might become relevant in court.
With all of this being said, the bottom line is that if you are involved in a family law case, you should carefully consider what you post or have posted on social media. Make sure what you post won’t come back to haunt you; in fact, you might imagine it being read out loud in court. A Facebook “like” or retweet isn’t worth it if it has serious legal ramifications during a divorce or childcare case.
Lawrence Datz is a partner at Datz & Datz, P.A. with more than 30 years of family law experience. He is board certified in marital and family law, a fellow of the American Academy of Matrimonial Lawyers and a master in the Florida Family Law Inn of Court.
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