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Beware the rampant use of social media

I recently had a custody trial during which almost 100% of the evidence introduced came from text messages and social media posts or comments. In this age of technology and social media, in divorce proceedings and custody cases, lawyers and investigators routinely check public social media sites and parties' profiles (of the client’s and the client's spouse or other parent). I use these sites to not only check in on the character of the opposing party, but I also use the sites to check in on my own client.

I had a case where Dad was pleading poverty and an inability to find work. His LinkedIn page however, told a different story. After a court ordered vocational evaluation, the court decided Dad had an earning capacity that far exceeded minimum wage and child support was ordered accordingly - whether he could afford to pay it or not.

This data is searched for signs of hidden assets or to catch the spouse in a significant lie. In my case, it was used to undermine the credibility of in-court testimony and to show a parent's lesser ability to assume full custody of the minor children. In California, a no-fault state, lawyers are more likely to focus on issues related to finances and child custody rather than issues related to adultery or unsavory activities. Think of your computer as a tell-all device regarding your character, and in most cases, about your financial picture.

Of course, the data that can become publicly available depends largely on the individuals’ desire for privacy and how careful they are. Even those who value privacy during the relationship however, are at risk of the former spouse finding sensitive data.

The first steps taken after the divorce process begins can be critical. For example, you may want to change your passwords, create a new e-mail address/account, stop sharing calendars with your spouse or other parent (if applicable), and turn off location and other navigation tools when not in use, on your smart phones or devices or apps that can track your location.

Even with these precautions, always keep in mind that where there's a will, there is a way. Anyone committed to finding information about a spouse can most likely find a way -- although whether that information is admissible in court is a different inquiry all together. Security questions for releasing passwords to digital accounts, email and on-line banking, may need to be changed, especially if you use your mother’s maiden name or some other information from your past with which your spouse (or the other parent) has knowledge. Try coming up with untruthful answers to those same questions that no one else could guess. Just make sure you pick answers that you can remember.

Beware the aggressive and ethically questionable spouse who goes so far as to install malware on the other spouse’s or parent's computer that can log keystrokes.

But there are also fully innocent and legal ways that a spouse can gain access to what was thought to be private data, especially among those lacking savvy with their technology. For example, a text message could go simultaneously to a phone and an iPad that was left with children or a former spouse, something many people forget or don’t know, especially if they didn’t set the devices up themselves. Think of the convenience of syncing devices, then think of the ramifications for anyone going through a divorce or engaged in a custody battle.

Evidence from social media can be a primary source for anyone who has a family law practice, for getting information not only to understand clients, but also to understand the dynamics of people on the other side of a case.

Another example - maybe one you didn't consider - is the parent who has custody and claims to spend his/her day doting on and caring for the children. Their online activity however, can tell a different story whether it's spending hours on-line shopping, viewing pornography, going onto on-line gaming sites (racking up debt with on-line gambling sites), or spending hours on social media sites.

Just remember, anything you put in a text or an email or post on a social media site, may one day be blown up onto a poster board and presented as evidence at a court hearing.

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