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Guest Article by Elizabeth Pfenson: Your Digital Life During a Divorce (or Custody Case)

Think about where your phone is most of the time. Your pocket? Think about how frequently you use your phone to text your partner or your friends, or your childcare provider. Constantly? Think about the pictures you share on Facebook or Instagram of your children and your outings. All of them? Privacy rights advocates have been telling us for years that we should be more careful about the information we post about ourselves online, and at the same time technology companies tempt us with secure and encrypted devices and programs, suggesting that we can keep our digital lives private.

I’ll leave the debate about privacy rights to Silicon Valley, but as a family law attorney, I can confidently say that in a litigated custody or divorce case, you will come face to face with your digital history in a courtroom. Text messages, emails, posts—these digital breadcrumbs that we leave behind us can make or break a case, and they’re everywhere.

I challenge you to find a single divorce lawyer that hasn’t used one (or five, or twenty) text messages or emails as exhibits in a recent trial. During the “discovery” phase of a case, both sides may be required to disclose all their text messages and emails with each other and with any third party if the communication was about or concerning the subject matter of the litigation. That’s a wide net! Both sides may be required to disclose their electronic Facebook data (including all past postings and all private messages, etc.). Both sides may be required to disclose all communications and pictures involving or concerning their new romantic partners, as well as their histories of Uber, Lyft, and Venmo transactions. If it’s not disclosed voluntarily by the other party, in many cases it can be subpoenaed.

The good news is your digital life doesn’t have to stop just because of your family law matter. In order to navigate potential pitfalls successfully, consider the following do’s and don’ts of social media usage, texting, and emailing.

  1. THINK TWICE—no, THREE TIMES before typing anything that you might not want a judge to see. “Private” messages, emails, and texts are not really private. Don’t write anything when you are angry or upset. You may come to regret it later. Instead, consider typing out a response and deleting it instead of sending it, or waiting 24 hours before you send a message at all.
  2. NEVER make negative comments about the opposing party, no matter how terrible or upsetting that person might be. Instead, ask yourself if you really need to say anything about it at all. The high road is often the safest. Talk to your attorney about when you should say something and when you should just think it instead.
  3. ALWAYS take advantage of all privacy settings available to you on social media sites. Many family law attorneys do online searches of the opposing party or possible witnesses, sometimes more than once. If that individual has a public page, anyone can view it.
  4. DEFINITELY turn off your location settings on your mobile devices. This is especially important for victims of domestic violence. If you’ve separated from your partner, make sure they can’t find you using the Find My Friends app or anything like it. Be aware that some seemingly innocuous apps such as a shared calendar or shared photos could have a location-tracking component. If you need help adjusting your privacy settings, reach out to your attorney.
  5. DON’T post or allow yourself to be tagged in pictures of yourself at parties or bars, or pictures of yourself drinking, smoking, or engaging in any other activity that a judge might even possibly frown upon. Don’t make the other attorney’s job easier by giving them material with which to cross-examine you. And, while we’re talking about what not to post, don’t post or share things about your children or about parenting in general. You can’t always anticipate the way that pictures or comments could be turned around and used against you later. Remember that time your toddler plucked your last nerve, and you acknowledged frustration about it in an “anonymous” mom’s group on Facebook? Or when someone shared a picture of you and your five-year-old on a boat, but he wasn’t wearing a life jacket?
  6. DON’T register for or use any dating websites until the case is over. This is just as true for a custody modification case as it is for a divorce case.
  7. DEFINITELY change your password to all of your online accounts. If your former partner knew or could have guessed your password, they could log in and watch your online activity. Immediately tell your attorney if you suspect that your phone, laptop, or electronic accounts have been tampered with in any way.
  8. THINK TWICE about using your work email to communicate with your attorney. In some jurisdictions this can be considered a waiver of your attorney-client privilege, since (generally speaking) your employer owns your work email.
  9. NEVER type the following phrase or anything like it anytime, anywhere, to anyone: “My lawyer says . . . .” This includes your family members and your close friends. This could be considered a waiver of your attorney-client privilege.
  10. DON’T delete any written communication between yourself and the opposing party, or between yourself and any third party if it is relevant to the case. You don’t want to be accused of tampering with or destroying potential evidence.

While the guidelines listed above are appropriate in just about every family law case, every case is unique. Talk with your attorney about the best ways to strengthen your case through your social media, texting, and emailing habits.

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