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The information you provide publicly can be used as a form of evidence during nearly any hearing, so long as it is deemed relevant and legally procured. Social media posts, direct messages, text messages, emails, even dating website profiles — all of these can be used to form the basis of a legal narrative that could be used against you and in favor of your spouse or their attorney.

According to the National Law Review, 81% of attorneys say that they have discovered evidence on social media they consider worth presenting in court. Further, 66% of divorce cases now contain Facebook posts and direct messages as a principal source of evidence.

It is generally advisable when a divorce is imminent to restrict your account from being publicly viewable and immediately stop using all forms of social media. The more you post, the more evidence you provide that could potentially be used in ways you find contrary to your best interests. Even something as seemingly innocent as posting about politics or “checking in” at a location can become damning evidence against your character, sometimes even seeming to directly contradict your own sworn statements.

Deleting your profile and old messages can be a bad move, too, especially once the divorce has been filed. These actions could be interpreted as willfully destroying evidence, so realize you must walk a careful tightrope when it comes to your past, present, and future social media activity.

Below are some of the ways social media can affect you during divorce and/or child custody, child support, or alimony proceedings. Refer to a New Mexico divorce and child custody lawyer for more information and specific guidance pertaining to your own case.

Social Media Can Be Used to Paint an Unfavorable Picture of a Spouse’s Character

Any and all forms of social media activity can be leveraged by an enterprising divorce attorney. The documented activity can be used to support a narrative that a spouse:

  • Has not provided for their family and spouse according to their full means
  • Is engaged in habitual substance abuse, such that they are irresponsible or perhaps even a danger to themself and others
  • Are frivolous with money, to the extent that the money would be better used via alimony or child support payments
  • Are a combative or aggressive person, making them less likely to provide a nurturing social and home environment for children
  • Are actively engaged in one or more outside relationships prior to the finalization of the divorce
  • Have tendencies generally indicating mental or moral deficiencies

These sound like very harsh narratives, but they can all be leveraged by spouses who are seeking certain marital assets, certain post-marital arrangements, or a greater share of time spent with the children.

Posting about parties or substance habits can be a normal social activity, but realize it may paint a picture that you don’t wish to convey. Similarly, posting about spending, vacations, or time spent with friends can be misconstrued in a way that indicates needless spending or excess time spent on personal gratification.

Also, online activity can quickly reveal infidelity a spouse thought was kept secret. The National Review Article cited earlier mentions how “1/3 of all legal action in divorces cases is precipitated by affairs conducted online.”

Be selective about the type of content you post before, during, and even after the divorce. Better yet, avoid posting at all since any single post can be used as a piece of evidence reinforcing an unfavorable narrative.

Social Media and Electronic Content Can Demonstrate Inconsistencies in a Spouse’s Statements

In some divorce cases, a spouse is less-than-truthful about their means and their daily activities. Examples of this include:

  • Making statements as to limited available resources, but then posting about new purchases or personal spending
  • Posts, direct messages, texts, or dating website profiles that indicate infidelity during the marriage
  • Contradictory information about the subject’s location, such as saying they couldn’t care for the kids a certain day because they had to work but then posting about a fun outing with friends
  • Misleading statements about efforts to find gainful employment or improve current income, such as posting about playing video games all day when the subject could be job hunting
  • Revealing assets not declared in the marital and separate property inventory, including cars, boats, jewelry, or other items

Again, many times the facts being argued involve unfairly interpreting one or several social media activities. Even still, during hearings, a judge or a neutral advisor to the court can be influenced by these types of narratives. Posting certain activities on social media — or even communicating about them in private — can circle back around to you and make it seem like you aren’t true to your word. In some cases, they can even show you lied during a sworn statement, potentially putting you in legal trouble with the court.

Emails and Texts Can Show Harassment, Abuse, Coercion, and Other Questionable Behaviors

Be extremely careful about the communications you send to your spouse (and others in their orbit), especially during divorce proceedings. Any and all texts, emails, and other correspondence can and will be leveraged during hearings.

Making threats or describing how you will manipulate information in court to fit your preferred narrative can all be damning and cast your testimony — and entire character — in a bad light. Sometimes, text messages and emails can form the basis of protective orders preventing a parent from directly interacting with a spouse or spending time with their children.

Misinterpretations can similarly form the basis of allegations that color how the divorce will proceed. For example, if a parent texts the other parent repeatedly during a single day trying to get information about meeting up, that could be interpreted as stalking, intimidation, or harassment.

Always think about what you say, how you say it, and how much room there is for interpretation before sending any texts, emails, or correspondence. Make sure your meaning is clear. Also, wait until you are calm and have time to think about your intentions before you send any message.

Can Social Media Evidence Be Admitted Even When Someone Isn’t Supposed to Be Able to See It?

First, any publicly accessible account and online post can be admitted as evidence. This includes accounts you assume to be anonymous, but which can actually be linked back to you with very little effort.

Information accessible by your spouse, their attorney, and others they personally know can also be admitted, in most cases. If you do not restrict the type of content your spouse would see, for example, they will be able to gather every new post as a piece of evidence to be used against you. Similarly, someone with access to your account can voluntarily share screenshots and other evidence to reveal posts the other spouse thought were hidden.

Evidence can be subpoenaed, too, so long as the request presents a compelling case for doing so. This can mean posts kept private or that certain individuals were blocked from seeing must now be willingly shared with the other parties.

However, spouses and attorneys cannot surreptitiously obtain this type of evidence. For example, they cannot form a new fake account, “friend” or follow someone, and then obtain the evidence that way. Even still, there are legitimate ways to access restricted or blocked content that could still allow the obtained information to be used as evidence, so never assume anything is 100% private or anonymous.

Deleting Anything Presumed as Evidence Could Put You in Contempt

One final precaution to take is to exercise your due diligence and learn what types of actions are and aren’t considered allowable when it comes to preserving evidence.

Deleting your profile, posts, direct messages, and other information can easily be seen as destroying evidence, in many cases. It is strongly advisable to consult with a divorce attorney in New Mexico before making any final decisions pertaining to the removal or deletion of this type of information.

In some cases, even blocking someone, changing your profile name, or otherwise altering the environment of your social media posts could be enough to place the actor in contempt of court. Such actions would have to be in clear violation of a direct court order or would have to be part of a pattern of destroying evidence for severe consequences to occur, but nevertheless, individuals should practice an abundance of caution before taking such actions.

One action that can be generally accepted is to restrict who is able to view your profile through general settings. You can set a profile to “private”, for example, and turn off the ability for your posts to be viewed by anyone but friends. Know that these actions may not be enough to prevent access to your content, though, so the best precaution is to stop posting on social media altogether for the time being.

Speak to a New Mexico Divorce Attorney to Learn the Best Precautions for Social Media and Digital Communication

We can all say or do things online or over the phone that we can come to regret. Hindsight is always clearer, but the truth is that many things that feel innocent or that seem irrelevant to your divorce could later come up during hearings.

Hiring a divorce attorney provides you with guidance, advice, and instructions for how to conduct yourself to minimize the risk of unfavorable outcomes. Divorce is stressful, and the laws surrounding it can be unclear — or, worse, wide open to interpretation. Appointing an attorney gives you someone with knowledge and experience to help you form a solid legal strategy for seeking your ideal outcomes following the divorce. Your attorney can then work to pursue the optimal outcome in the interests of both parties, potentially limiting the need for hearings, presentation of evidence, or contentious proceedings in general.

New Mexico Financial & Family Law is prepared to represent your interests and help you seek your preferred outcomes during all aspects of divorce. Whether in court, at mediation, or through correspondence, we act as your representative and counsel, helping you reduce the risk of taking actions that could have a negative effect on your divorce and child custody goals.

Learn more about how we can assist and represent you during a no-risk, confidential consultation. Call (505) 503-1637  or contact us online to schedule your appointment today.

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