Social Networking - Is It Truly Relevant? Or Just Another Place Where Legal Pros Need to Tread Lightly?

Social networking services seem to be commonplace and are surfacing more and more in divorce litigation. They range from the well known sites such as Facebook, Twitter and Match.com, to some less publicized like Ashleymadison (a site where married individuals meet), Dark Odyssey (where “open minded” people meet) or Adult Friendfinder (the point of the site is casual sex). Wikipedia defines Social network sites as an online service, platform, or site that focuses on building and reflecting of social networks or social relations among people, e.g., who share interests and/or activities . A social network service essentially consists of a representation of each user (often a profile), his/her social links, and a variety of additional services. Most social network services are web based and provide means for users to interact over the internet, such ase-mail and instant messaging. Social networking sites allow users to share ideas, activities, events, and interests within their individual networks. However, to what degree social media will play in the everyday divorce case remains to be seen.

Can Divorce Rates Go Any Higher?

Over the past few months, several articles have reported that the popular social-networking sites cause one in five divorces. This idea evolved from Mark Keenan, managing director of Divorce-Online, an online divorce-service provider in the U.K., after determining that the word "Facebook" appeared in 989 of the company's 5,000 or so most recent divorce petitions. As such, he had Divorce-Online issue a news release in December 2009 stating "Facebook is bad for your marriage." Mr. Keenan acknowledged that the survey was very unscientific and further acknowledged that his company's clients aren't necessarily representative of all divorces nor did the petitions state that Facebook was the actual cause of the divorce.

Regardless of the accuracy of the claims, there are reliable statistics with regard to social networking and divorce litigation. In February 2010, the American Academy of Matrimonial Lawyers (AAML) announced results of a survey of its 1,600 members. 81% of said members said they had seen an increase in cases using social-networking “evidence” in the last five years. 81% of AAML members reported an increase in the use of evidence from social networking websites within the past five years. Only 19% reported that there was no change. According to 66% of the AAML members surveyed, Facebook is the primary source of this type of evidence while MySpace follows with 15%, Twitter at 5%, and other choices listed by 14%.

What Information From These Sites Is Relevant In A Divorce Case?

The question can only be answered by the attorney seeking to establish a particular fact or address a specific issue. The following are real examples of evidence found from social media websites which may or may not be relevant depending on if a foundation for their introduction can be laid:

A - In a custody case where the father seeking custody identifies himself on match.com. as single, never having been married and having no children.

B - In a case as to the issue of parenting time and dissipation of assets where the Complaint for Divorce annexed to it 36 pages of the husband’s posts on www.theeroticreview.com. He rated his experiences with prostitutes and described, in detail, which women would allow him to have unprotected sex, the kind of sex, their fees and set forth the frequency of his visits.

C - In a domestic violence case, the wall posts of an angry ex-boyfriend including threats to damage property, to do harm to others and his admission that he stalked his ex-girlfriend by logging on Facebook through a friend’s account.

D - In a contempt of a Final Restraining Order, where the husband, or allegedly his brother, posted images of Miss Piggy in the place of his wife’s profile picture on her Facebook account.

E - In a case where a spouse seeks an annulment of a second marriage on the grounds of fraud after finding e-mails on Facebook between her husband and an old girlfriend following a college reunion. The husband promised to have children but failed to disclose he had a vasectomy after his second child was born.

F - In a Tevis case where a hedge fund manager lost her job allegedly because the husband posted personal information on his Facebook wall about the wife and divorce which was viewed by common friends in the industry.

This information is only as relevant, like any other evidence, if it is discovered. Whether a spouse comes across information in an e-mail or text message when her spouse neglects to lock his Blackberry is no different than a spouse who finds the same information when her spouse fails to log out of his Facebook account on the home computer. Evidence, declarations against interest and admissions come in all forms.

Conclusion

The use of evidence from social networking sites is no different than evidence in written, e-mail or verbal form. So long as the information is relevant and the foundation laid, under N.J.R.E. 611 and 901, the information can be used at trial. To that end, you may soon see requests for social networking data in your boilerplate discovery demands and routine subpoenas issued to these sites.

To read the article in full form, including sections "Is The Data From The Sites Discoverable,"Was The Information Properly Obtained, and "How Else Can I Obtain The Information," click the link below.