How Your Posts on Facebook and Other Social Media Sites Could Affect Your Divorce

HOW YOUR POSTS ON FACEBOOK AND OTHER SOCIAL MEDIA SITES COULD AFFECT YOUR DIVORCE

With the rise of social media comes the rise of people who choose to share intimate and personal details of their life where hundreds, if not thousands, of people could potential see it. At some point in our lives, the majority of us have heard “be careful what you post on Facebook, you never know who will see it.” We’ve heard about employers searching potential employees’ social media sites before hiring them, we’ve read about employees being fired after posting racial slurs or inappropriate photos. Notwithstanding, there are thousands of people that cannot help but air their dirty laundry to anyone who will “listen”. Many feel they are safe as long as their page is private and they can choose who sees their posts. Is this really this case? How can social media posts affect the outcome of your divorce or family law matter?

To answer the above questions: no, your posts are not safe from discovery simply because you make them private, and your posts can influence the outcome of many aspects of your divorce or family law matter. Your posts can be used to contradict a myriad of claims you may make.

For example, in a custody case a court will look at, among other things, who has been the primary caretaker of the child, and who is most likely to facilitate and encourage the relationship between the child and the non-custodial parent. When there is a dispute about these factors, social media posts can prove to be quite revealing. In a 2015 case out of Westchester County, the Court determined that how much a party traveled outside of the city was relevant to the question of how much time the party spent with the child, and ordered that printouts be delivered to the Court of all relevant photos and posts on Facebook with date/location stamps showing how often the party was away. See A.D v. C.A., 16 NYS3d 126 (Westchester Cty. 2015).

In another case out of Monroe County, the court found the Father to be a better candidate for custody and that the Mother was “less fit” and unable to put the needs of the children before her own. This conclusion was reached after Facebook and blog posts were admitted into evidence wherein the Mother badmouthed the Father, calling him a “horrible excuse for a human being” and accused him of being lazy, unemployed, owing child support. Other posts claimed that the children were miserable whenever they were with him. Additionally, the Mother had posted a picture of her hand bandaged after she injured herself, claiming that she lost her temper. See Elissa N. v. Ian B., 930 NYS2d 174 (Monroe Cty, 2011).

Social media posts have not only affected the outcome of custody disputes, they’ve also affected a Court’s determination on the duration/ entitlement to spousal support. In a Staten Island divorce case, the Wife was unemployed and claimed that she was disabled and unable to work. She requested an award of lifetime maintenance, meaning that the husband would have to pay spousal support for the rest of her life. During the course of the trial, over 100 comments on Facebook, as well as blog posts, were admitted depicting the Wife’s involvement in belly dancing. The Court noted that when one commenter asked why the Wife didn’t post any pictures, the Wife responded, “gotta watch what goes online. The ex would love to fry me with that.” Based upon the amount of posts, the time stamps and the indication that the Wife often traveled into Manhattan for belly dancing classes, the Court rejected the Wife’s claim that she was unable to work, and found that she could sit at the computer for great lengths of time and travel into the city. Accordingly, her request for lifetime maintenance was denied, and she was awarded only two years worth of spousal support. See B.M. v. D.M., 927 NYS2d 814 (Richmond Cty, 2011).

Now, to answer the first questions posed: what if the social media posts are private, meaning that only people you choose can see them? This may not matter. The New York Court of Appeals recently (less than one month ago) rejected the notion that the account holder’s privacy settings would govern the scope of discovery and disclosure of social media postings and materials, as this would allow an account holder to obstruct discovery simply by making their account private. This does not mean that the entirety of a social media account is automatically subject to discovery, as this would be overbroad. Rather, the determining question remains “are the materials sought reasonably calculated to contain relevant information?” If the answer is yes, the Court will grant access to the materials whether or not the account is private or public. See Forman v. Henkin, NY Ct of Appeal, February 2018 (not currently published in New York Reports).

So how can you protect yourself? The answer is simple. Refrain from posting anything potentially damaging on social media. While it is tempting to “get people on your side” or humiliate your ex, the cost is far too great.

If you are interested in mediation, or are seeking a matrimonial or family law attorney, please contact Rachel Silberstein, Esq at 646-470-0780 or email her at rachel@rssfamilylaw.com. Consultations are available in Long Island, lower Manhattan or by telephone. Please visit our website at www.rssfamilylaw.com for more information.

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