Ciyou & Dixon, P.C. attorneys routinely field questions about technological advances that may be used to gather critical evidence. Indeed, the tools that are available sometimes allow amazing pieces of evidence to be captured, authenticated, and have an evidentiary basis laid for their admission into evidence and use in the courtroom proceedings.
For example, a spouse’s affair and the lavishing of gifts on a younger man may be memorialized in electronic format and played in HD in the courtroom to establish dissipation of marital assets. A docile dad’s claim he never stays out all night partying, drinking and womanizing — and, therefore, should have custody — may be excised by cell-phone triangulation.
This evidence is expensive to obtain but is fairly common in high-stakes asset and/or custody cases. However, Facebook (and other social media sites) is free; and unlike what you might find with a private investigator and high-tech equipment, if your spouse is on Facebook, it is likely that what he or she is doing on a regular basis is captured there. Honestly, it is both amazing and frightening.
At Ciyou & Dixon, P.C. time and again, we observe that clients have little awareness about the implications of Facebook use: A client or opposing spouse may swear in a deposition or open court that he or she does not drink, only to later have the opposing attorney pull up his or her Facebook photo post showing him or her drinking a beer.
This is damning information and evidence in a divorce proceeding. Aside from perjury (a felony), the trial court Judge may subsequently disregard this spouse’s entire testimony and case theme: If he or she lied about that, what else isn’t true? The simplest way to lose a case is to be viewed by the court as dishonest and a liar.
While it is true that a majority of divorce cases settle out of court and do not reach trial, your Facebook account may cost you legal ground and money in many other ways. We believe that most divorce lawyers will tell you (we certainly will) that if you add a new girlfriend or boyfriend into the legal mix while the divorce pends, the chemistry is bad, if not explosive.
Yet we find it common that a spouse in a pending divorce proceeding will post pictures of his or her significant other on Facebook, sometimes scantily clad and in a less-than-professional embrace. So even if the post is not relevant to the issues of the case, and the case never reaches trial, that insult is probably going to cost you — a lot. Luckily, it is not a factor in that division of assets unless dissipation is argued.
Simply put, we observe time and again that the human ability (of a bitter spouse) to dream up new and creative ways to inflict pain on the other spouse is virtually limitless. To make this point by using a variant of an old adage, remember: “Hell hath no fury like a spouse scorned.” Don’t fall into this trap.
Ultimately, we do not believe that most divorce litigants intentionally use this powerful tool to be malicious or spiteful. Instead, in the electronic age, the boundary between what is public and what is private is hard to define. Because Facebook may be accessed in the privacy of your home or office, where no one else is around, we find it creates an aura of privateness, akin an electronic photo album or journal.
Be aware and advised, however: it is anything but private. If you post it, blog about it, or the like, remember that your spouse or ex has Facebook (mutual) friends, and this information might as well be sent directly to him or her.
At Ciyou & Dixon, P.C. our bottom-line advice to clients regarding Facebook or other social media outlets is the “front-page-of-the-paper” test. If what you post is not something that you would put on the front page of the paper, and thereby share freely with your ex in light of the dynamics of the divorce, DON’T post it.
