As a matrimonial attorney, the very first thing I say to every new client is, "Shut down your Facebook account and stop texting immediately." While not everyone necessarily follows this advice, the ones that do are in much better shape if the case goes into a courtroom.
Two separate surveys from the American Academy of Matrimonial Lawyers have further bolstered my position on this issue. In 2010, our organization released the results of a survey showing that 81 percent of the members had seen an increase in the use of evidence taken from social networking sites during the previous five years. Facebook was predictably the most popular site for this kind of evidence, with 66 percent of the respondents listing it as their first choice.
Our most recent survey released this month shows an overwhelming 92 percent of respondents saying that they have seen an increase in the number of cases using evidence taken from iPhones, Droids, and other smart phones during the past three years. In addition, an even larger number of 94 percent have cited an overall rise in the use of text messages as evidence during the same time period.
So what do matrimonial lawyers know that many others are just beginning to recognize? Basically, having evidence in writing is always the most effective proof in demonstrating that someone is being dishonest, contradictory, and lacks credibility. Credibility is the coin of the realm in the world of family law. Once you can effectively question someone's credibility with their own written statements, then everything else can be doubted about them.
This is why I also strongly caution my clients that any time you put something in writing, automatically assume that a judge will eventually read it. If it's something that you don't want a judge to read, then by all means don't write it. Words are power; they can be used for good or for evil. Think and be careful before you write anything, because it can go beyond the intended audiences and undermine you in ways you never even imagined.
Practicing this kind of restraint can be a real challenge for many people in today's world, because the way we communicate has changed so dramatically. Before the Internet and cell phone era, divorce cases involved more of the old-fashioned "he said, she said" disputes that often hinged on phone calls and verbal conversations.
Texts, e-mails, and Facebook posts have obviously removed a great deal of the ambiguity from the process. Text messages can often be the most incriminating pieces of evidence, because they are so immediate and easy to compose. Unique among other writings that are prone to be drafted and revised, texts are composed at the spur of the moment, resulting in pieces of evidence that can be raw, uninhibited, and highly incriminating. In many ways, texts can be the written equivalent of a heated discussion, but without any of the doubt afterward about the exact words and language that had been used.
In a legal situation, having a full transcript and a history of texts creates a potential insurmountable mountain of evidence against someone. Having someone's own specific words, combined with a clearly defined and recorded timeline, provides extremely powerful material for a devastating cross examination.
While many people are beginning to realize the risks posed by thoughtlessly posting comments and pictures on Facebook, I still find myself regularly shocked by the incriminating messages and images that can be so easily accessed in a divorce case. Sometimes even with the time to think things through, individuals still exercise a real lack of judgment and make terrible decisions that come back to haunt them in unforeseen ways.
The bottom line is that any form of communication that a person most regularly engages in will generate the biggest potential for evidence that others can sift through and use against them. Being mindful of this and choosing not to send a heated text or post a compromising image or comment on Facebook can benefit you in more ways than you might even realize at the time.
Once a divorce is final, I expect my client to start texting and posting updates to Facebook. But I do remind them that divorce is forever: If you have children, you may return to court in the future to revisit custody and support issues. Be careful who your Facebook friends are and always be cognizant of what you put in writing.