Til "Tweets" Do Us Part: Social Media and Its Impact on Matrimonial Litigation

Angela A. Ruffini

Social media, a global phenomenon that has transformed the way we live, receive our news, elect our politicians, has profoundly impacted divorce litigation.

What a precarious situation people find themselves in when all of their uninhibited thoughts and questionable conduct wind up on social media. They live under the false pretense that deleting their "posts" ensures their privacy. In reality, their uninhibited thoughts and questionable conduct have presented as new forms of evidence in matrimonial litigation that could muddy the waters for some litigants. Indeed, as we well know, when something is deleted, it is never truly "deleted."

Social Media as Evidence

It is with good reason that courts have begun to capitulate to social media evidence. It has become one of the most intricate details encompassing people's daily lives. Users of social media often wake up and immediately check their social media accounts, post about their 12:00 p.m. brunch special or express their unsolicited political views amongst their "friends." Social media has become a pesky little nuisance that people cannot get enough of.

Embedded in social media platforms is also the platform's ability to track an individual's every move. Many social media websites contain GPS and similar technology to pinpoint one's exact (or almost exact) location. Therefore, social media evidence has become integral to legal proceedings and could truly make or break someone in the throes of matrimonial litigation. This evidence, as further detailed herein, has the ability to uncover a party's finances, location, drug or alcohol use, radicalism and other compromising evidence in ways legal processes – like subpoenas – cannot.

Courts will often cite three reasons for allowing social media evidence: (1) it does not violate privacy as there is no expectation of privacy; (2) it can be relevant; and (3) it does not violate any privilege."¹

But what does this mean for matrimonial litigation? Put simply, what litigants post on social media can – and likely will – be used against them (to the extent that it can). Indeed, social media evidence can be more compelling in divorce litigation than evidence uncovered by a private investigator. In recent years, there have been studies attesting to this fact. A 2010 study conducted by the American Academy of Matrimonial Lawyers (AAML) "revealed that 81% of respondents had used social media evidence in their cases."²

Naturally, eleven years later, one can only expect that number to have risen. "Going through a divorce always results in heightened levels of personal scrutiny. If you publicly post any contradictions to previously made statements and promises, an estranged spouse will certainly be one of the first people to notice and make use of that evidence," according to Marlene Eskind Moses, president of the AAML.³

Courts have gone as far as compelling social media evidence by granting access to passwords and login information.⁴

This now begs the question of whether there is a reasonable expectation of privacy in what and how we post. What we think of as "private," especially if an individual's account is private, may no longer bear that status in legal proceedings, especially if it is material to custody or finances. In fact, as many social media platforms do not guarantee complete privacy, a litigant cannot, and indeed, should not have a legitimate reasonable expectation of privacy.⁵

This further gives rise to concerns about an individual's Fourth Amendment protections. Are these protections applicable in the context of social media? While there is little written on the Fourth Amendment and its application to divorce and family litigation, it may become an integral part of evidence and motion practice in the future.⁶

Social media evidence has also presented ethical issues. The concept of "false friending" – where a spouse, third party, or even attorney "friends" an adverse party or possible witness on social media under false pretenses to accumulate evidence brings to light New York Rules of Professional Conduct Rule 4.1.⁷ This rule provides: "In the course of representing a client, a lawyer shall not knowingly make a false statement of fact or law to a third person."⁸ Does this phishing expedition raise ethical concerns? Indeed, is a lawyer friending someone on social media under false pretenses the equivalent of "knowingly [making] a false statement?" Or, can (and should) this evidence be used to hold a spouse accountable for his or her actions despite the ethical concerns, especially if this evidence is material and relevant?

When we think of social media, we often think about the preeminent platforms including Facebook, Twitter, Instagram, Tik Tok or Snapchat. But what about the less thought about platforms including GoFundMe, Change.com, or even dating websites like Match.com and eHarmony? Can the fact that someone has utilized GoFundMe to raise money for counsel fees serve as a basis to impute income to a spouse claiming poverty? Can someone's radicalized petition on Change.com affect the outcome of a custody case? Can someone's dating profile suggest that he or she is living with an intimate partner, thus affecting any maintenance award? While these may be questions still unanswered, documentary evidence of someone receiving counsel fees from online platforms or a radicalized online petition or even someone's dating profile can be utilized as evidence.

There are also questions about social media affecting someone's credibility and the ability to manipulate social media evidence. Can social media be used to impeach a witness? Can someone's grandiose portrayals be used against a party when he or she has represented the exact opposite throughout the matrimonial proceedings? Can someone's location on social media provide confirmation about someone's true whereabouts?

Recent literature suggests these answers are likely yes. Moreover, the concept of manipulating what we see and hear on social media is not new. With applications like Photoshop, we often question what is real and what is not. Can a scorned spouse choreograph evidence to meet his or her agenda? These very real and hot-button issues are making their way to the forefront of matrimonial litigation, sometimes helping and often hurting litigants.

Social Media's Impact on Custody and Finances

What is social media evidence intended to prove? Do litigants use it as evidence of destructive habits, excessive income, bad parenting? In reality, social media evidence can be used to help prove – or disprove – all of these things and much, much more.

Courts in custody matters have considered social media evidence when rendering a decision "in the child's best interests.". Some courts have considered social media evidence of a mother's live-in paramour as justification for awarding a father primary residential custody.⁹

Other courts have considered social media evidence of using illicit substances when determining custody.¹⁰ Still, other courts have scrutinized social media evidence as merely speculative with no probative value in custody determinations.¹¹

As in most custody matters, the use and weight given to social media evidence will almost certainly be determined on a case by case basis. Other situations whereby parents' social media accounts shed light on their ability to parent include: a father joining a dating website claiming he was single and without children while simultaneously seeking primary custody of his children; a parent denied her marijuana use in court, but subsequently posted photographs of her smoking marijuana at a party; a father claimed he could not afford to pay any type of child support; however, his social media account depicted photographs of him sitting in a Ferrari, taking a cruise, and selling land that he owned.¹²

It is evident that social media has provided a vast array of evidence into an individual's life and indiscretions that can assist in evaluating a child's best interests.

When it comes to maintenance or alimony, litigants have utilized social media evidence to prove that a spouse's allegations of disability were far from reality. In one case, a husband submitted evidence to prove that a wife's hobby of belly dancing, as depicted on her social media account, was requisite proof that she was not disabled and thus not a candidate for lifetime maintenance.¹³ The court considered this social media evidence when awarding her durational maintenance of only two years. In another instance, a litigant alleged that he was unemployed, and thus received temporary alimony payments from his wife. However, on social media the "unemployed" litigant represented himself as a business owner and wrote details about lavish trips to Las Vegas, South America and Sea World all taken with his new girlfriend. Based on this evidence, the judge denied his request for alimony at trial.¹⁴

Although litigants may find it hard to grasp that their private social media content is not actually private, social media evidence has given divorce attorneys a wealth of knowledge about adverse parties that serves to assist them in their cases and bolster their clients' positions.

Conclusion

While technology and media platforms constantly change and adapt to the ever-evolving times, most individuals fail to consider the impact that social media can have on their lives. The ramifications social media can have on matrimonial litigation will only continue to emerge as social media transforms and becomes an increasingly integral part of everyone's daily life and communications. Can we learn something from this? Perhaps yes or perhaps no, but between the algorithms and allegories, metaphors and made-up stories, it is evident that "big brother" is always watching. One would do well to proceed cautiously and be careful what one posts online, as social media has become a complete blueprint of an individual's life.