A divorce is one of those life events you can’t help but discuss with those closest to you. In this digital age, it can seem natural to share frustrations, heartache or even joy about it on social media. But our Somerset County divorce lawyers urge great caution in these arenas.

The Pew Research Center reports 9 in 10 Americans are online and 69 percent are on social media (i.e., Facebook, Instagram, Twitter, Snapchat, etc.). What’s more, three-quarters of Americans have a smartphone (a 16 percent increase in just a year), which means the ability to share is at their fingertips.

There are many societal benefits to this level of connectedness. However, as someone considering filing for divorce in New Jersey, you need to know that if you post it, your soon-to-be-ex’s lawyer may find it. Such information – from Instagram photos to Facebook rants – is now routinely working its way into divorce cases in Somerset County. We want to reduce the chances a client will accidentally provide evidence for the other party.

Social Media as Evidence in New Jersey Divorce Cases

While it may seem harmless to rail against your ex on Facebook (he/ she already knows you are no longer a fan), it can come back to bite you in court.

Your social media profile, pictures, posts and private messages are a treasure trove of information on everything from your finances to your living arrangement to your parenting. If you say or share anything that contradicts your position, it can be used against you in court.

Here are some of the ways social media posts can hurt your Somerset divorce case:

• Talking negatively about your spouse, children or divorce case. Such complaints may not only be hurtful, but a judge can be used as a means to undercut your child custody bid. The courts will act in the best interests of the child. If you are speaking negatively about your child, courts may consider that. If you are speaking negatively about your spouse, courts will consider your ability to be fair in sharing your parenting time.
• Posting pictures of drinking alcohol, doing drugs or engaged in other potentially irresponsible behaviors. This may come into play with child custody, but also with alimony.
• Posting pictures or talking about indulgences like trips, vehicles, clothing, etc. This may come into play with child support, alimony and division of assets. Your spouse could assert you aren’t being honest about your finances.
• Posting pictures or discussing your dating life. This can be used in a myriad of ways, particularly if you are embroiled in a child custody dispute.

Note that you may “block” your spouse, but that won’t make the evidence inadmissible.

Admission of Social Media Posts in Divorce Cases

Most people assume such posts can’t be admitted to court because their pages are “private.” This isn’t true. As noted by The American Bar Association, courts will of course consider if it’s relevant, probative/ prejudicial, whether there is a hearsay issue and if the content is authentic.

Social media evidence is now routinely presented in cases, and it often doesn’t matter that your account settings are “private.” In order to get access, as noted in the Pennsylvania Case of Trail v. Lesko, parties are generally expected to show “sufficient likelihood” the account is going to include information that is relevant and not otherwise available. Courts are keen to avoid a fishing expedition, but that doesn’t mean you can count on this to protect your posts and messages.

Beyond that, the evidence must be authenticated. Social media posts aren’t self-authenticating. Federal Rule of Evidence 901(a) states the party who wants to introduce the evidence has to offer up sufficient evidence to support a finding that it is what proponent claims it to be. This often requires circumstantial evidence.

In the 2016 case of New Jersey v. Hannah (a criminal assault case), defendant sought to exclude an allegedly threatening tweet on Twitter because she alleged it wasn’t properly authenticated. To counter this assertion, the alleged victim testified she recognized the message was written by defendant because it displayed defendant’s picture, she was familiar with defendant’s twitter username and the message was made in response to things the alleged victim was saying. Defendant insisted she didn’t write it, and noted anyone can create a fake page.

The New Jersey Court of Appeals declined to carve out a separate authentication rule for social media posts, noting that New Jersey’s Rule of Evidence 901 is similar to the federal rule, with authenticity proven through circumstantial evidence. The conviction was affirmed, as the court weighed the defendant’s username, profile picture, content of the tweet, its nature as a reply and testimony at trial to find proof of authentication sufficient.

Social media can be an invaluable investigative tool if you’re looking for information on your spouse, but it can likewise be used on you. If you have some concerns, discuss them with your lawyer.

If you are considering a New Jersey divorce, contact the Somerset County divorce attorneys at Rozin-Golinder Law LLC by calling (732) 810-0034.

Additional Resources: How to get social media evidence admitted to court, November 2016, American Bar Association

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