Oftentimes, the last thing on the mind of someone about to embark on a divorce is how to best posture his/herself in the event of contentious litigation. However, considering this position may be essential to the ultimate outcome of the divorce. Indeed, by commencing divorce litigation, the parties are essentially asking the Court to enter their homes, and decide, among other things, who is the better parent, who has the greater need for economic support, and who owned what property and when.
What makes preparing for divorce particularly unique is that the Court cannot glean these things merely by the claims of the parties, but must do so by reviewing the tangible evidence presented. For this reason, during the divorce process, the parties will engage in discovery whereby each party is obligated to produce documents and answer questions at the request of the other. These documents often include banking and credit card statements, emails, text messages, employment records, and other information. In the event that these documents are not in the possession of the producing party, the requesting party can subpoena them directly from the source (e.g. banks, employers, cellular carrier, etc.).
Each document will tell the Court a story about you and your spouse—whether you’re a big spender, whether your spouse is a hands-on parent, and a host of other personal details. Today’s world of text messaging, tweets, emails and status updates now offers the court a wealth of information about you. While this can be extremely useful in helping you create and dictate your own narrative, these new mediums can just as easily be used against you.
By taking a few simple and easy steps, you can begin to form your own narrative and control, to an extent, how the court may view you in relation to your case. Whether you’ve been considering a divorce for a significant period of time or have been blindsided by some marriage-ending event, the following are ways this digital age can work for you instead of against you:
1. Curb Your Texts and Emails: Even in the most amicable divorce, feelings will likely be running high on both sides. Unfortunately, getting a divorce often brings out the worst in even the most even-tempered people. That bitterness and resentment oftentimes finds its way into day-to-day communication. In today’s world, this means emails and text messages.
Written communications between you and your spouse, or you and your children (if they are old enough to email and text), are generally admissible evidence and can make its way into the court’s record. This is particularly true in matters involving custody. As such, this is not the forum to rant to your spouse about their shortcomings or to admit to all of yours. Written communication should only be for necessary matters. They should also be short and pertinent to the subject of the message.
Communication between you and your spouse should not run contrary to your ultimate goals in the divorce as well. For example, if you are requesting joint custody of your child(ren), but there are emails consistently showing that you and your spouse cannot get along or agree or that you continuously send bitter text messages to him/her, your position will be significantly undermined.
2. Change All of Your Passwords: In relationships, we share many things with our spouses, including personal information such as passwords. After all, what is a password when we share our homes, children and lives? However, as with many other things on this list, this information can and likely will be used against you. A spouse with access to your personal accounts can be more dangerous than any identity-thieving hacker. They can read emails to and from your family law attorney and potential witnesses. He or she can monitor movement in your personal accounts and credit card purchases. In the most extreme cases, they can even falsify text messages and emails, seemingly sent from your phone, email account, or on social media.
Upon realizing and accepting that divorce is inevitable, begin that separation by once again becoming a private person. Your soon-to-be-ex spouse should not have access to your computer, phone, tablet, email, social media accounts and banking/credit card accounts. As an extra precaution you may consider opening a new email account, solely for the purposes of communicating with counsel or your spouse during divorce proceedings.
3. Temporarily Disable Social Media Accounts: We all currently live in a culture where we are constantly available to everyone all of the time. We can share our opinions, major life moments, and day-to-day annoyances almost instantly. This constant need to share every detail of our lives can spell disaster in a divorce. In the same way that a disparaging email to your spouse can make you look uncooperative, a rant on social media, where your audience can be hundreds of mutual friends and acquaintances, will only serve to make you look like the dreaded “bad guy” in the relationship.
While most people can resist ranting about their ex on social media, they are certainly not out of the woods. Social media is also an excellent way for others to track your ongoing actions, even if you remain completely inactive on the site. For example, a spouse seeking pendente lite (temporary) alimony who posts, or gets included in, pictures on Instagram or Facebook of their latest Hawaiian vacation, “checks-in” at high-end restaurants or is pictured wearing a new $300 accessory will undoubtedly hurt their claim of “need”. Even if these were gifts from third parties or a single splurge in an otherwise frugal period, you do not want to draw any negative attention on your spending habits.
As such, it is strongly urged that all social media accounts be temporarily disabled pending the conclusion of the litigation.
4. Do NOT Delete Any Accounts: Although temporarily disabling your accounts is a great way to mitigate your exposure on social media, your accounts are still evidentiary in nature. The destruction of evidence, called spoliation, either in anticipation of, or during litigation may leave you vulnerable to the Court making a negative inference against you, even if what was deleted was relatively minor.
In the event that a social media account cannot be temporarily disabled, the account should not be deleted, but merely allowed to remain inactive. Moreover, for some, it is important that they remain active on at least some social media websites for one reason or another. For example, many use professional websites, like LinkedIn, as a source of networking and job hunting. However, be mindful that any information there that is contrary to representations made to the Court may be used against you. Therefore, you must insure that your profile is an accurate reflection of exactly how you want to be perceived by the Court professionally.
5. Stop All Recreational Drug Use: With the recent decriminalization of marijuana in some jurisdictions, and the outright legality of it in others, recreational use of marijuana, and the societal shift toward how certain drug use is viewed in general, has just recently entered the realm of legal ambiguity. It may be the case that you and/or your spouse used marijuana, either individually or together, without it ever being an issue. However, once litigation has begun, particularly if visitation and/or custody are at issue, your actions and behaviors will be put under the scrutiny of the court. A divorce proceeding is simply not the appropriate arena in which to test whether the local judiciary will be as tolerant as some legislatures.
While some may argue that, at least when it comes to the use of marijuana, we are entering a more liberal era, drug usage, whether illegal, decriminalized or legal should stop immediately upon a filing for custody of visitation. Though your spouse may have never raised the issue before, it is still fair game and will likely only hurt your case if you continue to use it.
In the face of all of the turmoil and stress that comes along with a divorce, you must remember to stop and think before hitting the “send” button. Remember this important rule: never send, post or submit anything you wouldn’t want the presiding judge to later read.
Eve Shuman, Esquire has practiced family law exclusively since graduating from Cornell Law School in 2010, and is experienced in a wide variety of matters, including prenuptial and postnuptial agreements, divorce, property distribution, child custody, parental access, spousal and child support, and interstate custody disputes. Ms. Shuman is an attorney in JGL’s Family Practice Group in the Rockville Office. She may be reached by email at firstname.lastname@example.org.