Emails, Texts, Facebook and Your Family Law Case

Don’t get caught airing your dirty (e-)laundry

These days we’re communicating via text, email and social media more than ever, so it’s a safe bet that some electronic messages will end up as part of your divorce, custody, or other family law proceedings. In a recent post, the Minnesota Family Law blog states that some sort of social media evidence now factors into a whopping 81% of all divorce cases, and offered up these tips to help you watch your step:

1) Consider your tone – Text messages and emails can oftentimes be misconstrued.  Remarks that were meant to be sarcastic or hyperbolic suddenly may be characterized by opposing party (or opposing counsel) as abusive or demonstrative as a parent’s ability to communicate with the other parent.  The presumption of legal custody in Minnesota is that it will be jointly shared by the parents.  This presumption is rebuttable if there is domestic abuse. Additionally, if the parties demonstrate a complete inability to communicate regarding their children, which might lead a judge to determine that one party must be granted the ability to make all legal custody decisions in the child’s life because the parties will not be able to discuss and make the decision together.

Bottom line: if you cannot keep your message clear and unambiguous, it might be better to have the discussion in person rather than over text or email.

2) Text messages and emails are not the only correspondences that can be presented in court – Phone calls can be used as evidence as well.  Most smart phones have the ability to record conversations, and there are several applications available for someone to download to their phone to record calls.  Anything that you say or do during the pendency of your legal proceeding can possibly be used in court against you.

3) Your correspondence isn’t the only correspondence the court may see – Attorney communications are oftentimes used in court as well.  While settlement offers are typically not admissible in court, oftentimes attorneys will follow up “important” events in a case to make sure it is documented.  For example, if one parent withholds parenting time from the other, the attorney may send a letter to opposing counsel informing them that there was a denial of parenting time.  If later in the case the issue regarding the denial of parenting time arises and there is a disagreement as to whether or not this occurred, there is now a correspondence that can be entered as evidence that the event occurred, when it occurred, and that the other side was put on notice about this behavior.

One other note to the professionals: it is usually good practice to assume all of your communications will be seen by the judge, so always be professional and courteous.  No one wants to look like a jerk in front of the judge.

4) Real time social media can hurt your case – While smart phones and other electronic devices are not allowed in the courtroom, sometimes parties or their friends and family will ignore this rule and tweet/email/post on Facebook during a court hearing.  This is extremely inappropriate and could potentially get you in trouble with the judge.  Venting about your court appearance afterwards is usually a bad idea as well.  If you want to discuss your court case with friends and family, then do so privately.

5) Everyone you talk to about your case can be roped into your court matter Any person that you talk to or discuss on social media, any person you are dating or seeing, any family member, any neighbor-anyone who might have one iota of information that is relevant to your case can be subpoenaed and required to testify.  If you don’t want to drag your friends into your court case, consider what information you discuss with them.

You would be amazed at what a skilled investigator can dig up, so be conscious of every word you send. Don’t forget, even deleted messages can be restored! It’s natural to feel the need to vent, but the middle of a legal battle is the wrong time to update your Facebook friends on the latest happenings, and the last thing you want to do is rip into your spouse, or anyone else in the family. Grab a friend and have a good old fashioned sit-down; not only will you feel better, but you’ll be safe from electronic pitfalls to boot.