Social Media and Its Impact on your Family Law Matter

David Bulitt: [00:00:00] Welcome to JGL Law For You. JGL Law For You is a podcast by lawyers, but not for lawyers only. On JGL Law For You, we will be discussing a wide array of topics to help you navigate the many legal processes, developments in the law, other current events, and how they may affect you, your family, and your business.

We’ve got a very, very timely and interesting topic. Social media, right? Everybody looks at Facebook. Everybody has an Instagram, TikTok, Pinterest, LinkedIn. I have to try to think of all the platforms. YouTube as well. But we post things. We don’t think that much about it. And maybe when we’re going through a divorce, we ought to be thinking about it.

And how, if at all, can what we put up on social media platforms, how, if at all, can that be used for us, or can it come back to haunt us, to help us discuss these career issues in a whole new world out there. This didn’t exist 10 years [00:01:00] ago, or even 20 years ago, by the way. My partner, Christopher Castellano, at Joseph Greenwald & Laake, who practices family law and he has spent a lot of time in the courtroom and has seen firsthand how social media affects a person’s family case whether it’s a custody or divorce case. Welcome aboard, Chris.

Christopher Castellano: Good morning, David. How are you today?

David Bulitt: I am doing great. So, as I mentioned, most people, you know, you see them walking around, you might see them at a restaurant and a coffee shop, they’re checking their Facebook, they’re checking their Instagram page. They’re posting selfies, they’re doing whatever it is they’re doing, videos, audios, every kind of media that you could only used to be able to see on television, you can now produce on a device that’s about two inches or an inch and a half by two to three inches long.

So, tell us a little bit, Chris, if you would, how social media can be used in the context of a domestic case, either in trial or prior to the time that you get to trial.

Christopher Castellano: Yeah, sure. So, let’s take it from prior to trial and then [00:02:00] segue into trial. But even before that, yeah, social media is, I would say, it’s taking over legacy traditional media.

And it has a steady march towards that since it started in the early 2000s. You know, I was on Facebook in 2004 when Facebook first started. Yeah. And there was 300 people in the college network that I was in. And it just goes to show how much it’s changed and how much it’s grown, right? Just like with anything, just like with any piece of media, there’s pros, there’s cons.

When it comes to our everyday life of dealing with litigation matters, it’s equally fraught with danger. When it comes to pre litigation, before you’re getting into court, how can social media have an effect on you? Well, every time you post something, let’s just look at the traditional social media. So, Facebook, right?

You can post your stream of consciousness, you can post a picture, or you can make a comment on it. So, let’s just [00:03:00] focus on that. When you’re posting on there, that is your thoughts, that’s your unaltered thoughts, and so it is a window into what someone’s thinking.

So, if you’re posting, you had a drop off with your ex-spouse, let’s say it’s a custody case, you had a drop off, and it was frustrating. We all get frustrated here and there in moments that we wish we had handled in a better way, but now, you could just take a device out of your pocket, post your frustration for everybody to see online.

It’s not a stretch to imagine how bad that can look. The moment you start disparaging your ex-spouse because of the poor exchange, for instance, you’ve just created evidence.

And for the litigator in us, we’re always searching for evidence. It used to just be, what kind of phone calls did you have? Let’s get somebody to describe the phone calls, or whatever it may be, and then it’s emails, and then text messages, and now it’s social media posts. Yeah. [00:04:00] So it’s ever evolving.

But the concept hasn’t changed, right? What piece of evidence did you just create? So, when I get a new case, I talk to them about social media. You know, what does your social media use look like? What are you posting? It’s a rare person to be an influencer, to be extremely active. I don’t want to pretend I haven’t seen it because I have, but generally speaking, we’re talking about people, everyday users.

They’re not power users. They’re just everyday users. And some of them may post, and some may not. It is that creation of evidence that’s the concern.

David Bulitt: When a client comes to see them, and you’re having this discussion about their social media activity, do you want to look through it yourself, or do you sort of, you know, you let them let you know?

I mean, we all know, and I have been doing this work a little bit longer than you, but together it’s a lot of decades, and we all know that clients don’t always tell you everything. So I’m curious, as you talk to whoever it is that’s sitting across from you in your [00:05:00] office, do you say, look, I got to take a look through your social media page, or do you trust them to sort of verify, oh, it’s nothing other than pictures of my kids or trees and that sort of thing, sort of benign kind of stuff?

Christopher Castellano: Listen, I’d like to think that I’m a trusting person, but it’s not my job to trust everything that you, the client, tell me. It’s my job to look out for you and have your back. I manage risks to people, right? I don’t feel I’m doing my job for you if I just take everyone’s word for it at face value.

So, I’m going to tell the person, just like I’m going to need to see your emails, I’m going to need to see your text messages, I’m going to need to see what your posts are. Now, if you say, listen, Chris, I’m not active, I don’t post anything, I’m not on X, I’m not on Pinterest, I’m not on Facebook, I don’t really post, or I’m on X, all I do is look at Formula One, that’s fine, I don’t care, right?

If you’re telling me that there’s just no substance to your social [00:06:00] media presence, that’s a different discussion. As with everything, each case is specific to the individual, but generally speaking, I’m going to want to take a look at posts, because what you could perceive as benign could have a very different look to a different reader.

David Bulitt: And for folks that are in the midst of divorce litigation, I’m going to talk about custody also separately, but in terms of financial type issues, how, if at all, can social media posts help or hinder a litigant?

Christopher Castellano: So, I always think back to the classic case early, early on in my career when I was a law clerk. Doing products liability and other insurance defense cases. You know, it was classic that you would get the private investigator picture of somebody who’s actually living a happy life. I remember distinctly a case of a guy claiming some emotional distraught nature, but it was happy skiing, right? Very, very classic circumstance.

It’s still different from social media. If you’re out there, you’re claiming that you don’t have time to pick up the kid on a Friday because you’re working. But then every Friday, you have pictures of you going to Topgolf. That’s not going to look good to the court. And you could just spread that logic out to almost anything when it comes to the idea that social media can be used to break down your credibility to the court, pictures, posts, whatever.

David Bulitt: I had a case recently, for example, in which my client’s spouse basically claimed that he was infirm, couldn’t work, couldn’t do things and so forth, and yet his Instagram page was filled with photographs. And this really was annoying because I’m not a feet type person. Photographs of his feet in varying places, at the beach, with the mountains behind him, things of that nature.

Now, I ended up settling that case here during the course of mediation, but I was able to pull up all of those posts from his Instagram page, and also, while we’re talking about different types of media, people also post videos, right? 

Christopher Castellano: [00:08:00] Oh, absolutely. I mean, I don’t want to say it’s the new frontier of social media, because I think we’re about five years past that, but the development of TikTok, Reels, Shorts, all of the various different forms of these short-form videos, and not to mention the concept of FOMO, the influencer market and economy, everybody now is looking for passive income streams.

And for people that are facing divorce, it’s not a stretch for them to sit there and think, well, you know what, I’m losing my standard of living the way I was used to. Let me see if I could reach out to social media and start creating a presence on there to become an influencer myself.

David Bulitt: I mean, if you look around — look on TikTok and Instagram particularly, and Instagram is a major, major marketeer for new business and business development. So, it’s interesting you’re talking about that, because I’m sure you have seen folks who are trying to generate revenues via social media, either through [00:09:00] influencer programs with companies.

And tell me a little bit about that. A lot of companies have these ambassador or influencer programs that folks get paid directly, like into from a shop pay account or something like that, right?

Christopher Castellano: Oh, absolutely. I mean, I’ve had a case relatively recently where someone was trying to turn their divorce circumstances and life into an influencer life. And, as I said at the top of this recording, I’m going to use evidence the way I’m going to use it. I don’t care where it comes from; I’m going to use it.

And if I find out that you’re trying to establish a new stream of income by way of the influencer life, you better believe it’s going to be mentioned. And I’m going to dive into that, and just like with anything, if you’re getting income one way or the other, direct or indirect, that’s relevant to your case.

If you’re claiming that you need alimony or you need child support because you don’t have enough income to sustain, and yet, over on the other side, you’re earning X amount of dollars [00:10:00] from trying to create an influencer life where you have subscribers on YouTube and you’re earning a certain amount of money from Alphabet, money is money. We’re going to find it. And if you’re earning it through social media, it’s not difficult to find.

David Bulitt: Yeah, even if they’re not, but they’re trying, it seems to me. So, you have someone, let’s take a hypothetical. You have a client whose spouse says, I haven’t been able to find a job, can’t find work, I’m doing, I’m in between jobs. But yet you look on their social media page, and there are three, four, five posts a day on their Instagram page. They’re running videos on YouTube. They’re trying, which means they’re doing what? They’re spending time, right? Trying to build that business versus going to a nine-to-five job. And is that something you can also use in your case? 

Christopher Castellano: Absolutely. Now, it becomes a little more nuanced in that situation, right? Let’s use two different examples. I like yours. They’re posting four to five pieces of content a day. Using various social media to promote it. And then on the other hand, let’s have the person who is [00:11:00] posting one short video a week and then claiming that, oh, I’m trying to become an influencer. You know, I’m just focusing on this. I can’t get the nine-to-five because that’s what I’m focusing.

You’ve got two, I would say, distinct people there. That’s where we would use the traditional expert. Let’s evaluate this person. Are they in good faith trying to start a business? Because a lot of people know that in this social media landscape, this influencer market, part of the bedrock of forming your presence is a lot of content in the beginning that’s not getting a lot of views.

All of a sudden, you’re going to step up, and it’s going to climb at a very steep rate, and you could see this in a number of different individuals who have actually started to make some income through social media. And so, I think it requires an expert at that point, frankly, to identify whether this person is putting in a good-faith effort.

Or is this person the guy who’s [00:12:00] out there doing interviews with jobs that they don’t qualify for and then claiming that they can’t get a job? 

David Bulitt: The other thing is that, and I have used influencers, believe it or not, as sort of de facto experts in efforts to try to get cases settled in that. In this fashion, right, you know, people sometimes will look at social media who aren’t familiar with how things get up there, right, and say, I see a video, it just means somebody turned their phone on, and they turned it off, and that way, and then they post it, and that’s it.

The reality is that for anyone who wants to do what you were talking about, it takes time. It might take 12 takes of the same video. So, in theory, you might be able to rely on someone, it seems to me, who can say to you, yeah, I, this is what I do for a living, and every one of those videos takes me X amount of time.

And then your expert, whether it’s a vocational rehab person or whatever, says, well, this guy was spending six, seven, eight hours a day that he’s spending on making videos in working at wherever, pick a place, Starbucks, he’d be earning X, Y, or Z. As I was looking at your [00:13:00] material today, that’s another interesting area that I think lawyers are going to look at, which gets me to — okay, so we know these problems can exist.

We know these are areas and minefields for lawyers to look to expose opposing parties. How do you protect your own client going forward? So here I am in your office. I’ve told you, yep, I’m all over the place. I’ve got an Instagram page with five, six, seven thousand followers. I’m posting. I’ve got a Facebook page with the same.

What do you tell me to try to protect me from someone else like you? 

Christopher Castellano: Yeah, so it’s interesting, right? This, again, social media is just media at its core, and you know, a lot of the ideas haven’t really changed, right? And I would submit that a lot of the concepts on how to protect yourself from social media haven’t really changed from a lot of the overarching concepts.

So, I’m not a gambler type; I’m a safer lawyer. And so, I like to tell clients that this is [00:14:00] the time for a divorce. This is your time for a divorce. You need to keep your head down, keep your nose clean, right? You know, some lawyers out there, I understand, they’re going to say, live your life, this is your divorce case, but don’t let it disrupt your life.

If that’s their approach, more power to them, more power to their clients. With me, that’s not what you’re going to get. You’re going to get more of a protective, let’s make sure that we’re keeping our head down, right? The same logic applies to social media. We’re going to start looking through your privacy settings.

We’re going to identify how you’re approaching your social media presence.

David Bulitt: And that gets you to the next question, which is, somebody says, “Oh, you don’t have to worry about anything because I have a private account.” So tell us a little bit about that.

Christopher Castellano: Yeah, nothing’s private. Nothing’s private. If it’s on the internet, then it’s always on the internet.

I was thinking about this in the earlier question, but I want to make sure it’s really, really, really clear. The one thing I’m never going to tell a client and the one thing a lawyer should ever tell their client is to delete their content. Evidence is [00:15:00] evidence, and the court’s entitled to see that evidence, whether it’s bad or good.

You don’t get to delete it, right? And even if you do, there’s always a record of it somewhere. If you delete it, and somebody finds that record, that’s even worse for you. That’s even worse because now you’re trying to get rid of that bad evidence.

And so that’s what I’m also going to tell our client is, don’t delete it. You don’t get — just like I tell them — you don’t get to delete text messages, you don’t get to delete emails. You know, just like you can’t go and take all your handwritten letters from back in the day and throw them in the trash can and burn them. You don’t get to do that.

And so, it’s the same concept when it comes to social media. You don’t get to delete it. It’s always out there. You can lock down your accounts and turn them private, but the content’s still there. Now, it’s not spoliation or destruction of evidence to turn your account private. Okay. You’re entitled to do that.

You’re not deleting the evidence. You’re just making sure that third parties that you don’t know can’t see your [00:16:00] content. And there’s nothing necessarily wrong with adjusting your privacy settings, but again, adjusting privacy doesn’t mean the content goes away.

David Bulitt: So I say to you, okay, well, hold on a second. I can go, and I can delete these posts. Nobody’s going to know that they’re there. It’s a private account. I posted these videos with my girlfriend. I can take them down. I post these videos in a jewelry store where I bought my significant other, my paramour, a ring or a necklace, right?

I can take that stuff down, and then I can delete it or archive it, and they’ll never even know it’s there. Yeah, until I issued a discovery where I asked for the archives.

I’m your client again. What do you do to me? I don’t know how to get an archive. I don’t know how to archive that stuff.

Christopher Castellano: I have no idea. What happens in that situation is it turns into an ugly and expensive discovery dispute, and you’re going to end up paying for it one way or the other, and you’re going to end up paying for it through attorney’s fees, assuming you have an attorney, to go in front of the court and argue.

What you’re doing is [00:17:00] either correct or incorrect from your standpoint, and argue about whether you are forced to give up that information. It’s usually not going to accrue to your benefit to hide evidence, just like it is with hard paper evidence, as it is with electronic evidence.

David Bulitt: We can’t change what happened in the past. What’s there is there. What’s done is done. And they’ll find it. They’ll see it. But what do you tell your folks going forward in terms of how, if at all, to modify their social media behaviors, both in a custody case and or in a financial-based case.

Christopher Castellano: Just like with emails and texts, and I use that as a backdrop for almost everything, right? Assume that a judge is going to read every single thing you write. That’s what I tell my clients. Assume it. Everything you write is going to a judge. You know, people use a program called Our Family Wizard.

It’s another thing for custody cases of communications between two parents, emails, text messages, all that form of communication. It’s no different than social media.

[00:18:00] Assume that a lawyer is going to print that piece of paper out that shows that communication, that post, or, quite frankly, bring that video, that reel, or that TikTok video into court and show the judge what it says, what it exhibits.

It shows that you’re disparaging the other side, that you can, in fact, work, but you’re playing golf, or whatever it may be. That damaging post can be shown, and the idea is to think before you post. I think that’s the biggest takeaway. Think before you post, because it’s going to go before a judge.

David Bulitt: We could probably go on about this for ages, but I want you to drill down to two or three real pieces of advice that you would give to any particular client when it comes to social media, under the context of a family law case, divorce, custody, child support, alimony, whatever the issues may be.

Christopher Castellano: Not to harvest from what I just said, but think before you post. Evaluate all of the [00:19:00] on how you use your social media as a second point. Evaluate, am I using it in an active way? Am I using it in the right, responsible way? And thirdly, what I would say is really kind of examine who has access to the social media.

Is it out there for the world to see? And do I like what is out there?

David Bulitt: Chris, this has been really, really interesting, and I think very useful for a lot of people. Because, as I said, most people would be listening to pieces of this on social media anyway. So they’re already there.

If folks want to get a hold of you to talk to you about their case or get some advice, what’s the best way for them to reach you?

Christopher Castellano: Yeah, absolutely. It’s funny, we’re talking about social media and what you could consider the future of media and communications. But a traditional phone call works best for me. 240-399-7900, and ask to talk to Chris Castellano. A phone call and we can discuss your concerns about social media, and whether it’s your ex-spouse, the parent of your [00:20:00] child, or whatever it may be, we can try to help you out.

David Bulitt: Thanks, Chris. You’ve been great. We appreciate having you on. Folks, this is David Bulitt, and this is JGL Law for You.