Everything You Need to Know About Social Media and Your Illinois Divorce

 Posted on July 17, 2020 in Divorce

In the grand scheme of things, social media has not been around for very long, but it has had a tremendous effect on our lives in the time that it has been present. In 1997, the first official social media website, SixDegrees, launched, changing the way humans interact with one another forever. Since then, thousands of social media websites and apps have been created to help people communicate and connect with one another.

Today, social media is a normal part of many lives across the globe. According to data compiled by Hootsuite, a social media marketing company, about 70 percent of the American population is active on social media. However, studies are continually taking place on the effects of social media on the relationships between people and how social media can affect mood, among other things. One of the areas researchers have particularly been interested in has been how social media affects marriage and divorce.

Social Media as a Divorce Contributor

Social media is defined as any website or app that allows people to connect and communicate by sharing media, writing statuses, posting photos, sharing links, or communicating in another way. Popular social media apps include Facebook, Twitter, Instagram, Snapchat, LinkedIn, Tumblr, Skype, Reddit, Pinterest, TikTok, and many more.

There have been multiple studies conducted on how social media affects couples in serious relationships. Though it is not cited as the sole reason for breakups or divorces, a study published in the Journal of Cyberpsychology, Behavior and Social Networking found that those who use Facebook more than once per hour are more likely to experience “Facebook-related conflict” with their romantic partners.

Interestingly enough, a different study published in the science journal Computers in Human Behavior corroborates those findings. According to the study, using social networking websites is negatively correlated with marriage quality and happiness, and positively correlated with troubled relationships and thinking about divorce. The same study also found that on a state level, as the number of Facebook users grew, so did the divorce rate.

Can Social Media Be Used As Evidence in Court?

This is a question that has been asked by many couples going through a divorce. In short, the answer is yes, social media and other electronic sources can be used as evidence in court. However, there are certain procedures that must be followed if you want to have social media posts or other electronic documentation admitted as evidence to the court. If you believe you have found something useful on social media, the first step is to tell your lawyer, who will then determine if the evidence is relevant to your case and how to go about authenticating the evidence so it can be admitted as evidence.

Is It Relevant?

The first step in determining whether or not you should use social media as evidence in court is determining whether or not the post has any relevance. The Illinois Rules of Evidence state that relevant evidence is any evidence that makes any, “...fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” All relevant evidence is admissible evidence, except in certain situations, such as if the information is inflammatory or prejudiced.

Your attorney will help you determine whether or not specific information gathered from social media or other electronic sources is relevant for your specific case. Divorces are emotionally-fueled events and what may seem like relevant information to you, may not actually be relevant in the eyes of the court.

Say, for example, a wife suspects her husband is cheating on her with a woman from his office. She finds the woman on Facebook and discovers that her profile is public. The wife notices that there are multiple photos of the woman and the husband on Facebook, from multiple occasions. The wife is upset that her husband is cheating on her, but Illinois stopped recognizing adultery as a “fault” in divorce cases in 2016. This means that this fact alone has no bearing on the divorce case, so this evidence would not be relevant to the case. However, consider a situation in which the wife also saw, in addition to the photos, a status that alleges the husband took the woman on a weekend getaway to a very expensive hotel and gifted her with jewelry. Then the evidence would likely be considered relevant because the husband likely dissipated marital funds to pay for the hotel and jewelry.

Is It Authentic?

If you have determined that you have relevant social media evidence that you want to use during your divorce case, the next step you must take before you can have the information admitted as evidence is authenticating the evidence. This means you are proving that the evidence is what you are alleging it is. The easiest way to do this is through witness testimony from the person who created the post. In the case of the adulterous husband, an ideal situation would be one in which the mistress admitted, on record, the details of the post, such as the information it contained, the platform it was posted on, and when it was posted.

However, many people are not going to be willing to admit to such things. If the person denies writing the post, your attorney may have to become creative when authenticating the evidence. The author of the post may have to submit to further questioning about the circumstantial evidence by your attorney in order to prove that he or she is, in fact, the author of the post. This can also be done through an assessment of the characteristics that are consistent with the alleged author’s other posts, such as punctuation, grammar, spelling, and salutations. You can also examine circumstantial evidence, such as the author’s email address associated with the social media account and the IP address associated with such email address.

Protecting Social Media Evidence

There is always a chance that something could be deleted, edited, or hidden online, which can be devastating if it was something that was particularly useful to your case. If you believe there is anything that even has a possibility of being evidence on social media, your attorney should send out a letter to all involved parties instructing them that they are not to tamper with, edit, delete, erase or otherwise change certain posts or information on their social media account. If the evidence is not preserved, they could be accused of spoliation of evidence and face further consequences.

However, this rings true for you as well. Your spouse’s attorney could have found a post on your own social media page that he or she would like to admit as evidence. In that case, you would have also received a letter instructing you not to alter the post in any way.

Issues That Can Be Affected By Social Media Evidence

Almost any issue that you must deal with in a divorce can be affected by evidence from social media. We already saw how social media evidence could possibly affect marital asset distribution and dissipation earlier in this blog. Here are a few other situations in which social media evidence could come into play:

• Consider a husband and wife who are getting a divorce and who have two children. They are both in a heated battle concerning parenting time of the children, with both parents wanting all of the parenting time. One night, the husband goes out drinking with his friends. One of those friends ends up posting a photo of the husband downing a drink in the middle of a crowded bar around 2 a.m. Even though the wife is not friends with the husband on Facebook any longer, she sees his friend’s photo and quickly takes a screenshot and informs her attorney of the post. She plans to use the photo as evidence that her husband is not fit to have full custody of the children.
• Imagine a couple who were married for more than 18 years before the husband decided he wanted a divorce. The wife claimed she did not have a job and did not work during the marriage because she stayed home to take care of the children while her husband supported the family, so she requested spousal maintenance. After a quick internet search, the husband’s attorney finds the wife’s LinkedIn profile that has her side business listed as employment for the past couple of years. The attorney plans to use that information as evidence that the wife attempted to hide her business to get spousal maintenance and did not disclose all of her income when she was supposed to.

Tips for Social Media Use During Your Divorce

There are many ways that social media can actually benefit you during your divorce, but there are also many ways that social media use can hurt you. Does this mean that you have to stop using social media during your divorce? Probably not, but your attorney will likely advise you to make a few changes to ensure you are being proactive and protecting yourself. Here are a few tips to follow regarding social media during your Illinois divorce:

• Change the privacy settings on your accounts. Just to be safe, you should change the privacy settings on all of your social media accounts. Setting your account to private can help prevent you from appearing in searches and prevent certain people from seeing your posts and photos.
• Be cautious of what you post or share. During your divorce case, you should be extremely cautious with your social media activity. You should also have a conversation with your friends and family to ensure you are all on the same page as to what you should and should not be posting as it pertains to the divorce. A divorce is an emotional time and the last thing you need is an insensitive social media post to make tensions even higher.
• Do not post anything when you are upset or angry. Social media apps such as Facebook, Twitter, and Instagram have become commonplace in our lives and we often feel compelled to share our experiences online when we are angry or sad. While this is normally not an issue, you should think twice about posting about divorce-related topics on your social media pages. Even if the post seemed innocent to you, your spouse’s attorney could use it against you.
• Remember, nothing online is ever truly deleted. As mentioned prior, it can sometimes feel good to express your emotions on social media, but that is not always the best idea. As soon as you hit the button to post the status, you can never take it back. The status may not exist anymore, but the underlying electronic data and metadata remain and can be recovered with proper efforts.

Are You Planning to Get a Divorce? Our Elmhurst, IL Divorce Lawyers Can Help

In most situations, it is almost always better to try to negotiate with your spouse before you take anything to court. Once you take your divorce case to court, a judge will be responsible for approving any decisions that you and your spouse come to, or in some cases, the judge will make the decision if you cannot cooperate with your spouse. In either situation, it is important to have a knowledgeable DuPage County divorce attorney by your side throughout the divorce process. At Weiss-Kunz & Oliver, LLC, our team of skilled attorneys can help you use social media and other electronic evidence to your advantage during your divorce case. Do not leave the future of your financial standing and parental rights up to chance; call us today at 312-605-4041 to schedule a consultation.

Sources:

https://hootsuite.com/pages/digital-2020

https://www.dcba.org/mpage/v-32-Marie-Sarantakis

https://www.natlawreview.com/article/family-law-social-media-evidence-divorce-cases

https://www.isba.org/ibj/2013/07/facebookwhatfamilylawyersshouldknow

https://www.isba.org/ibj/2014/06/buildingyourcasewithsocialmediaevid

http://www.illinoiscourts.gov/SupremeCourt/Evidence/Evidence.htm#402

https://www.sciencedirect.com/science/article/pii/S0747563214001563