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Social Media- The New Tools of Divorce Courts

November 23, 2010

Buffalo, NY (WBEN) — Think your soon-to-be-ex-spouse’s divorce attorney can’t find what you’ve “hidden” in your Facebook account?

Think again.

Information from social networking sites – including Facebook and Twitter, emails, text messages, and search engines is more and more frequently being used as evidence in court proceedings.

“It is a new phenomenon. We’re seeing its impact at a variety of levels,” Nelson Zakia, chair of Matrimonial Law for Hogan Willig, P.C. told WBEN’s Sandy Beach on Thursday.

“I have experience with the Facebook and other social media, and Google, and things like that not with fault, or proving adultery, or proving cruel and inhuman treatment, but more on the economic end of things,” Zakia explained. “By that, I mean, if in the context of a divorce proceeding, a spouse could prove that his or her spouse’s conduct was so egregious as to shock the conscience of the court… the court would have the power to distribute assets in consideration of that behavior.”

“[A judge] might say, where I would otherwise divide these assets 50/50, because of this egregious conduct on the part of one spouse, I’m going to divide this 60/40,” Zakia said.

Divorce attorneys themselves use information from the Internet to verify what assets their client’s spouse has, and how much those assets are worth.

“We do review it, pretty much routinely, particularly if there’s a business involved,” Zakia said. “Let’s assume you have Sandy Beach Inc., and you’re going through a divorce. Invariably, when someone’s going through a divorce, it happens to be the worst year of their life… business is going down the tubes, and they attempt to put forth evidence that minimizes the value of a particular asset, and in this case it would be Sandy Beach Inc. Yet, when we go on Google or we go on Facebook, there, the party involved is projecting a totally opposite image… Sandy Beach Inc. is one of the top businesses in Western New York, and we’re seeing sales that are going through the roof.”

Although such economic “gotchas” are the most common pieces of information that attorneys and divorce courts look for, that’s not to say that they don’t also use the same means to uncover evidence of infidelity. Where children are involved, Facebook messages or texts shared by a cheating spouse could sway a judge’s decision about custody arrangements.

“It comes down to steps or actions on the part of one spouse which bring into question their good judgment, the parenting skills of that particular individual,” Zakia noted. “And don’t forget, when you put something on your Facebook page, or you state something, that can be used as an admission.”

Changing your password or privacy settings won’t help, either.

“Even if the spouse has suspicions, the attorney would have the tools to ask the court to impound a computer, to force the access of passwords. And we’re seeing a lot of litigation involving the ‘discovery’ component – this applies to emails, this applies to almost any communication in any form. There’s been a dramatic rise of litigation regarding those ‘discovery’ items,” Zakia said.

So when you’re posting, don’t just think about what you’re saying – also consider what it says about you.