Divorce and Your Social Media Sites
Getting a divorce today creates issues that did not exist even ten years ago. One of the biggest changes is the rise of social media and the digital footprints we leave on sites like Facebook, Twitter, Instagram, and Foursquare. This article discusses issues that arise before and after a divorce has been finalized. But first, lets talk about social media issues that arise while a divorce is pending or being contemplated.
Spoliation of Evidence
The Texas Supreme Court handed down an opinion last week addressing spoliation of evidence. The case is Brookshire Brothers, L.T.D. vs. Aldridge,__S.W.3d__ (7-3-2014). Click here to read the opinion. The case provides a framework for trial judges and attorneys to address spoliation issues.
In plain English–spoliation means that a party destroys or conceals evidence that would have been harmful to him (or her) at trial. See Simmons & Ritter, Texas’s Spoliation “Presumption”, 43 St. Mary’s L.J. 691, 696 (2012).
The duty to preserve evidence arises when a party knows or reasonably should know that there is a substantial chance that a suit (claim) will be filed and that the evidence in his (or her) possession or control will be material and relevant to that suit (claim). In other words, if you are going through a divorce or expect to file a divorce petition, then you have a duty not to destroy evidence. This may include deleting photos and posts from your social media websites.
So what does this mean for you? If you expect to file a suit for divorce or custody (or if you are currently in a divorce or custody proceeding), then you should consult with your divorce attorney before deleting any embarrassing or harmful photos or posts from your social media websites.
Otherwise, you could be asking for trouble if your ex’s attorney files a motion for discovery sanctions alleging that you destroyed evidence relevant to the divorce or custody proceeding. [Note: I’ve blogged about this before–don’t put anything on the Internet that will hurt you–like drug use, risque pictures, or evidence that you committed a crime. This statement is self evident–but the issue continues to arise in many civil and criminal cases I handle.]
Divorce and Beyond
But what about after the divorce and custody fight is over? What happens after you no longer have a duty to preserve relevant evidence? How do you deal with photos and other digital information on the Internet of you and your ex?
Nick Bilton of the New York Times wrote a great article in today’s paper called ‘Tangled Web of Memories Lingers‘. In that article he talks about how he dealt with removing photos of himself with his ex after they decided to get a divorce. It was a painful experience for him and the article is worth reading. It also brings to mind the scene in The Social Network where Erica Albright tells Mark Zuckerberg that “the Internet is not written in pencil, its written in ink.”
Nick Bilton’s story does a great job of addressing how, and if, you should erase some of the ink stains from the past off the Internet.
Genaro R. Cortez