Guest contributor Scott Morgan

As has been repeatedly reported in the media over the past few years, online postings are becoming common sources of evidence in divorce and other family law litigation. This article will discuss recent studies and surveys that have examined the increased use of online postings as evidence in divorce cases, as well as how courts have dealt with some of the issues.

Facebook and UK Divorce Filings

Unlike most US jurisdictions, the United Kingdom does not allow divorce based solely on irreconcilable differences without at least a two-year waiting period. That waiting period increases to five years if the divorce is not agreed between the parties. Consequently, parties desiring a quicker divorce must file based on some kind of fault ground. The most common fault ground pled is referred to as “unreasonable behavior.” The resulting “behavior petitions,” as they are known, provide details as to exactly what constitutes the other party’s allegedly unreasonable behavior.

While this may seem a bit draconian to those in the United States, it has created a wealth of data concerning divorce causation. The most commonly cited studies on behavior petitions have been done by divorce-online.co.uk, a British divorce website. In 2009, an analysis of 5,000 behavior petitions found that 20% of cases cited Facebook as a contributing cause for the divorce. It appears that this is a growing trend, as a 2011 follow-up found that the proportion had risen to 33%.

The studies found that the most common specific reasons given were (in order of frequency):

  1. Inappropriate messages on Facebook to members of the opposite sex
  2. Posting of malicious comments about the other party on Facebook
  3. Reporting of inappropriate behavior by mutual Facebook friends

The trend seems to be clear that, as arguably the world’s most popular website, Facebook is becoming a more and more fruitful destination for divorce lawyers and their clients, who are looking for evidence of marital wrongdoing.

AAML Survey on Dating Sites and Social Media

The trend of finding online evidence of marital misconduct is not limited to the United Kingdom. The American Academy of Matrimonial Lawyers recently surveyed its members about divorce case evidence obtained from dating websites. The AAML survey found that, from 2009-12, 59% of its divorce lawyer members saw an increase in the number of cases involving evidence obtained from dating websites such as Match.com and eHarmony.

An earlier AAML survey on social media covering 2005-10 found that 81% of its member attorneys had seen an increase in the number of cases involving evidence obtained through social media sites. Facebook was the most common source of such evidence at 66%, followed by MySpace at 15% and Twitter at 5%.

So the trend is quite clear: people are posting on social media more frequently, and this is creating more opportunities for divorce attorneys to use those postings as evidence against them. Additionally, parties (either before or during separation) are creating dating site profiles more frequently, thus creating additional opportunities for online evidence to arise.

Typical Problems Created by Online Postings

So what are the most common types of online postings that are later used as evidence in family law cases? Some of the most common posts that come back to haunt a party are:

  • Having a profile on a dating website such as Match.com or eHarmony
  • Having a profile on a website that is commonly used for affairs, such as AshleyMadison or AdultFriendFinder
  • Lying about their marital status
  • Lying about whether they have children
  • Lying about their income
  • Incriminating photos

Actual Cases Involving Online Postings as Evidence

In 2010, articles in USA Today and on NBCNews.com summarized interviews with several divorce attorneys on how their own cases had been impacted by social media evidence. The examples given included:

  • A husband and father who had a Facebook profile indicating that he was both single and childless
  • A husband accused of having anger management issues posting the following on Facebook: “If you have the balls to get in my face, I’ll kick your ass into submission”
  • A wife who sought custody was proven through online records to have been playing the online game World of Warcraft (with her boyfriend) at the time she had claimed to have been out with her children
  • A mother who denied that she smoked marijuana but was impeached at trial with Facebook-posted photos of her smoking from a bong

Divorce Cases on Point

While the usage of online evidence in divorce cases is on the rise, it is not a brand new phenomenon. As far back as 2007, an Ohio appeals court held in a divorce and custody trial that the father was entitled to use the mother’s MySpace postings as evidence of her sado-masochism and use of illicit drugs. Dexter v. Dexter, No. 2006-p-0051, 2007 WL 1532084, at *6-7 (Ohio Ct. App. 2007).

In another divorce case, the wife was seeking alimony based on her claim that she was disabled and physically incapable of working. During the pendency of the divorce, however, the wife had taken belly-dancing classes. The court ruled that it was permissible for the husband to use the wife’s own Facebook postings to dispute her claims. While she had been careful not to post any photos of her belly-dancing, she did post a comment referring to the belly-dancing class, stating that she had to “be careful what goes online . . . . The ex would love to fry me with that.” B.M. v. D.M., 927 N.Y.S. 2d 814 (Richmond Cnty. Sup. Ct., N.Y. 2011).

As reported in Forbes, in a 2011 Connecticut trial court addressed the issue of discovery of social media data and account access in a divorce case. The parties initially agreed to exchange social media account passwords for their respective Facebook accounts, as well as the wife’s eHarmony and Match.com dating profile accounts. The wife initially refused, but after her lawyer gave what seems to be questionable legal advice, she reluctantly but voluntarily turned over the passwords.

After doing so she apparently had second thoughts and began deleting messages and past postings. The husband’s attorney then requested and received an injunction prohibiting the deletion of any data from the parties’ accounts. It is unclear whether the trial court would have issued a password-exchange order if the parties had not agreed to one, but once the parties did agree to it, the court felt compelled to enforce the spirit of the agreement.

Conclusions

While the media frequently quotes divorce lawyers claiming that Facebook and similar sites are a new “cause” of divorce, most of those interviewed (myself included) are quick to point out that Facebook does not cause problems on its own; it is the way people use Facebook that becomes problematic. Social media sites are neither inherently good nor evil; they are just tools, and like any other tool they can be used for either good or bad purposes. But as long as people are willing to post their private matters for the world to see, the use of online postings as evidence in divorce cases will continue to rise.

–Scott Morgan

 

About the Author

Scott Morgan is board certified as a family law attorney by the Texas Board of Legal Specialization. He is the founder of the Morgan Law Firm, which has offices in three locations in Texas: Houston, Austin, and Sugar Land. The firm focuses exclusively on family law and divorce litigation in Texas.

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