I recently received a mass email from a friend announcing that her husband and her would be getting a divorce. She apologized for sending such a sensitive and personal message in a mass email, but wrote that it made things easier for her because she wouldn’t have to explain things over and over again. The NY Times has a good article supporting my friend’s method and suggesting a trend in people sharing both good and bad news through social media.
One of the first issues I deal with as a lawyer in a divorce or parenting-rights (child custody) dispute is social media. I advise my clients that they need to be careful about posting information on Facebook, Twitter, Google+ or the like because it may be used as evidence in the case. The best practice is to simply refrain from posting any public material at all. I recommend that people change their passwords for their online banking, email, Facebook, Twitter and any account that the adverse party may know about.
People also need to be mindful that their new boyfriend or girlfriend can provide fodder for the other side. Photos or status updates about fancy dinners, vacations or expensive gifts can lead to arguments over dissipation of marital assets. (Dissipation occurs when a party conceals, conveys or wastes marital assets during the dissolution proceeding or in anticipation of divorce.)
Going through a divorce is a dramatic and emotional experience. People seek support from their friends and family. It is becoming more common for people to seek that support via social media. The implications of someone’s seemingly innocuous status update on Facebook could be significant in a contested hearing over a parenting time/child custody, disposition of marital assets or amount of child support. There is a fine line between a person sharing news about what is happening, e.g. “I’m having a bad day,” versus why they think it is happening, e.g. “My husband doesn’t care about the kids.” Let’s use these two examples going forward to analyze whether there’s a difference in what happens as a result of those updates in a divorce.
The case law governing the discoverability of social media during litigation is evolving. The tentative rule across the country is that if a party posts relevant public information on social media, the opposing party can then obtain access to private information from that specific social media platform. There has yet to be a published Colorado case dealing with this issue. Curiously, Pennsylvania seems to be at the forefront of Facebook discoverability.
In the above scenario, a party in Pennsylvania posting a Facebook status update about “My husband doesn’t care about the kids,” may open the door for the opposing party to access private information such as direct messages to see what else that party may have written. See McMillen v. Hummingbird Speedway, Inc., Zimmerman v. Weise Markets, Inc. and Largent v. Reed. For more info on how Pennsylvania courts have dealt with this cutting-edge issue, see here. Courts in New York have also taken a keen interest in this issue. See Romano v. Steelcase Inc., N.Y.S.2d 650 (N.Y. Sup. Ct. 2010), Patterson v Turner Constr. Co., 88 A.D.3d 617 (2011).
In contrast, a status update such as “I’m having a bad day” would likely fail the relevancy test adopted by the courts in Pennsylvania and New York. See, e.g., Davids v. Novartis Pharm Corp. (E.D. NY 2012). Everyone has bad days. Such a general statement likely is too tenuous to justify disclosure of log-in and account info.
While there is no guarantee that a Colorado court would follow the rule being established in Pennsylvania and New York, a party embroiled in a divorce or parenting-rights dispute should certainly be wary of posting anything on Facebook, Twitter, Google+ or other forms of social media. A person also needs to take into consideration whether their attorney is familiar with social media as it can be a powerful tool in obtaining critical evidence to present to the court.
Kalamaya Law 
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