Remember that everything you email, post, and everything posted about you on the internet will probably exist on some backed-up server for eternity. Strangely, even tech-savvy people seem to forget that their intimate emails from three years ago are still discoverable and accessible, or that a mean-spirited status update will exist on Facebook even after it was deleted. For example, a friend of mine's former husband was seeking to modify his child support obligation because he said he was experiencing a financial hardship during the recession. A brief review of his Facebook page revealed a recent photograph of him sailing on his new forty-foot racing yacht. Needles to say this would have been very damaging to his credibility in court.
A Picture is Worth a Thousand Words
We recently had a man come into the office who wanted a divorce because his wife was cheating on him. He had discovered his wife's affair through pictures that popped up on his Facebook newsfeed -- pictures of his wife and his best friend on vacation together when she was supposed to be on a business trip. If you are notified that you have been "tagged" in a photo, immediately check the photo to see if it is appropriate. Ask your friends to remove any inappropriate pictures of you posted online. Even better, don't have inappropriate photos taken to begin with -- ever. In this digital age, the last thing you want during your divorce is for photos of your new romance or drunken interlude to become the next viral internet sensation.
If You Can't Say Anything Nice...
You do not need to post the details of your most recent fight with your spouse on your Facebook status update. As angry as you may feel, your Facebook friends really do not want to know the intimate details of your divorce. Save the rant for your counselor.
Little Pitchers Have BIG Ears
Similarly, you don't want to be trashing your ex online if you have children together. Kids have internet access... Enough said.
Keep Your Friends Close, and Your Enemies Off Your Friend List
Think twice before friending someone on Facebook during your divorce -- especially someone who is still friends with your ex. You never know who may be information-gathering for the other side. Similarly, your former sister-in-law might not be the best person to friend while your divorce is pending.
An Ounce of Prevention is Worth a Pound of Cure
You do not need to respond to every flaming email that your ex or soon-to-be ex-spouse sends you. If you are in the middle of substantive discussions regarding an issue and must respond to an inflammatory email, a good rule of thumb to follow would be to ask yourself: "if I were to cc my attorney on this email, would I be embarrassed to have her see anything I have said?" Where the court will be deciding issues surrounding parenting time, angry posts slamming an ex-spouse on a social networking site or even in an email are discoverable and may be used to establish that the posting parent will not be supportive of the children maintaining a relationship with the other parent after divorce. One of the factors that Colorado courts look at when determining what parenting time arrangement will be in the best interest of the child is which parent will best work to maintain the parent-child bond with the other parent.
Colorado is a no-fault state and judges generally don't care about infidelity and marital misconduct in divorce. However, photos of you and your new romantic partner posted on Facebook may still be used against you in court. For instance, a photo showing one spouse vacationing with a paramour during the marriage could be used to establish that dissipation of marital assets has occurred. Where a court finds that dissipation of assets has occurred, it may affect how property is divided between the parties in the divorce. The moral is: don't be naughty and, if you are being naughty, don't post on the internet.
Actually, these points are good to keep in mind at all times, not just during the turmoil of divorce. Social networking is a tool like any other. Using it conservatively should keep you from having your internet fun become your online disgrace.
Additional resources provided by the author
A great resource is Kristen L. Mix's recent article in The Colorado Lawyer: Discovery of Social Media, June 2011, Vol. 40, No. 6, pp. 27-35.
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