Electronic Communications and Divorce

January 21, 2013  |  Elizabeth A. Schading

Almost everyone has gotten used to sharing most of their lives online, but it can be a bad idea during a divorce. Increasingly, text messages, emails, and social media data are winding up in front of judges as evidence.
For example, the American Association of Matrimonial Lawyers reported in 2012 that 94{a0c01d20c42349884e67ff80c137866b0a9fe47aaae8f8a86a605a369ae487c3} of them had seen text messages used as evidence. Often, clients don’t even realize how much they’re giving away when they use these mediums, especially social media.

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Remember, if you put it out there online it is fair game and often not as private as you think it is. You should also remember that you don’t always have control over what goes out there. If your friend snaps a picture of you with a big beer in your hand, posts it online, and tags you, then you often have little recourse to get it removed.
Here are some examples of the types of social media evidence which could impact your divorce case, especially in custody battles : photos of alcohol and drug use; photos of your kids in inappropriate places; discussions of your new boyfriend or girlfriend; evidence that you had overnight dates while the children were staying with you; vengeful or threatening comments; activities which violate your divorce order; information about your employment, income, or current assets; and evidence of spending sprees that impact marital property.
At Barna, Guzy, and Steffen we do encourage our clients to take some steps to secure their electronic communications – changing passwords and locking down privacy settings are always a good idea. Some spouses will log into electronic accounts for the express purpose of posting and manufacturing electronic evidence.
However, locking down your accounts isn’t enough as the information can be subpoenaed. There are two additional steps you can take.
First, restrict your electronic activity. Use email, text messages, and social accounts for business, or bland routine communications, if you have to use them at all.
Second, be on your best behavior to begin with. Don’t send your spouse long, threatening, angry messages or jump on your social media account to tell the world what a loser he or she is. Don’t do anything or let your kids do anything that could be questionable. Then there’s nothing to report, through electronic media or by any other method.
If you are going through divorce and need legal representation, our experienced Minnesota divorce lawyers are here to help!