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Social Media and Electronic Evidence in a Rhode Island Divorce

There is a lot of online advice for people who are going through a divorce or other legal issue about what they should and should not post on their social media accounts. There is also a great misconception about what “social media” means and some people assume that it only refers to platforms like Facebook, Instagram, and Twitter. And while it can be critical to your case to watch what you are sharing on those sites, you should also be careful of what you include in your text messages, emails, and other data you share via technology with others.

For example, any messages, photos, or other media that a person sends from their cell phone can be just as important as evidence as media that is sent or viewed from a computer.

Major Increase in Electronic Evidence

Electronic discovery – also referred to as e-discovery refers to discovery in legal proceedings, used to identify, collect, and produce electronically stored information. While it is a relatively new standard, its use has skyrocketed over the past several years. This is evident in surveys that have been conducted periodically by the American Academy of Matrimonial Lawyers (AAML).

Every few years, the AAML surveys its members regarding the effect social media has had on the divorce cases they handle. With each survey, the percentages increase. Text messages were cited as the most common electronic communication obtained for divorce, with more than 95 percent of survey participants citing their increased use.

One reason for the marked increase is the overwhelming number of people who now use smartphones, leading to greater use of texting and emailing as forms of communication, often instead of calling. Obtaining these text messages and other electronic communications has also become easier than in the past now that communication companies have the technology to be able to provide any messages from a given number if they are subpoenaed to do so.

One other interesting statistic that came out of the last survey conducted by the AAML is how many attorneys are using evidence from dating websites against their clients’ spouses. Almost 60 percent of members cited this method of collecting evidence, with the majority (65 percent) obtaining their evidence from the dating site Match.com.

Admissions and Inferences

Another mistake that some people going through a divorce make regarding their social media sites is that they think if they do not directly post about their activities, there is nothing their soon-to-be-ex-spouse can use against them. For example, a person involved in a heated custody battle may be under the misconception that if they don’t post or “check-in” that they are at their favorite bar several nights a week, they are safe. What they fail to realize is that all of the photos they are being tagged in week after week by the friends they are with can be used against them to show a pattern of behavior that the court can decide is not conducive for child custody.

It can be just as harmful to try to delete any embarrassing or inappropriate photos and posts since the courts often look at this as the “spoliation of evidence.” If the other side can prove that this type of evidence existed and that the person deleted (effectively destroying) the evidence, the court could also use this against them because it shows a possible character trait of untruthfulness and fraud, as well as making poor choices.

Call Our Family Law Firm for Help

If you are considering or have made the decision to divorce, call Kirshenbaum Law Associates at 401-467-5300 to schedule a confidential consultation with one of our skilled Rhode Island divorce attorneys. We will evaluate your case and help you decide the best way to proceed.