Just like the famous “Miranda warnings” we see on television, the statement that “anything you say can and will be used against you” also applies to divorce cases. Commentary on social media and text messages exchanged between spouses and others are “fair game” in divorces and can have damaging effects.
In Illinois, in a case where a father was trying to change child custody, the court allowed into evidence several references to drinking that the mother made on a social-media page, to show that she was unfit to keep custody. In another case in that state, a husband was trying to end spousal support because he claimed that his ex-wife’s relationship with another man had risen to the status of a de facto marriage, much more than an intimate dating relationship. Even though his claim was unsuccessful, the court allowed the admission into evidence of online social media posts showing that the lovers shared information about joint trips and important life events, because the posts were relevant to the judge’s consideration of how the ex-wife and her significant other presented their relationship to others.
With regard to text messages, courts across the country have said that they are admissible evidence. In Texas, in a case deciding what visitation rights the mother should have, the court allowed into evidence numerous pages of texts between the children and their mother into evidence – many of them showed the strained relationship between them, along with the mother’s sometimes manipulative and erratic behavior. Similarly, in South Carolina, to support his adultery claim, a husband put into evidence text messages from his wife’s phone which detailed her adultery.
But sometimes a record of text messages can used for a positive purpose, if they are threatening or harassing. Then the person getting them can seek a restraining order. A temporary Restraining Order (TRO) lasts until a subsequent court order extends or dissolves it, or replaces the order with a Final Restraining Order (FRO). The texts can, of course, be used as evidence. But they must be presented in written form – you cannot hand a judge your phone to look at during a domestic violence hearing.
Remember that your social media postings are not off limits. No matter how private you make your profile, a person may be able to use it against you in a divorce or family hearing. To be completely safe, keep all commentary off the internet or, even better, delete your social media posts. Omar Bareentto is a 2016 Rutgers School of Law graduate and a former contributor to the Rutgers Business Law Review. He collaborated with me on this blog.