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Social Media and Text Messaging How Technology Impacts Evidence in a Family Law Case

Social media use and text messaging are some of the most often used methods of communicating with people in our lives. What we don’t think about while sending a text or posting a message is that electronic communications are important sources of evidence in family law cases. Using social media feels so carefree, and so private. Social media and text messaging put no friction between us and communication. You think, you hit send and that’s it. 

Being careful about your digital activities is essential when going through a divorce or child custody case. We all get into conversations online or via text and lose track of time. The next minute that conversation unknowingly becomes ripe for usage in a  family law case. Simple it is to store digital communications At the same time it is so difficult to explain tone and context in these settings. It is easy to warn about the evidentiary usage of social media. It is completely a different thing to guard against their usage in day-to-day life. 

Keep off social media? Try it out and see how it works

Abstaining from social media use and even text messaging during your family law case ends up making a great deal of sense. Having the self-control and the circumstances to allow you to do this may be difficult. However, the net result is powerful for your case. What you run into when there is no social media use is that you are more diligent about how you communicate. How you express yourself becomes more intentional. 

Instead of flying off the handle of speaking so easily, you put more thought into your comments. Now you are in a much better place with your methods of communication. True, it takes you longer to get your point across. Being in a position where you can open up and communication freely is good. You can, at the same time, speak freely and intelligently about what is going on in your life. 

The use of electronic communication in family law cases

Family law cases have come to rely heavily on social media and text messages as evidence. This should come as no surprise given how many people are users of these platforms. All people use social media these days. Many of us are users of multiple social media platforms. Additionally, how many of us now solely use text messaging in our day-to-day communication with friends and family?

However, because the nature of these communications is so immediate there are little to no filter opportunities exist, and electronic communication becomes a problem. What you thought of as a “no big deal” conversation becomes anything but small potatoes depending on the subject matter discussed. None of us are always intentional about how we communicate. This is especially true when it comes to social media and text message communication. 

Being careful with your words is essential during a family law case. However, your language before the case is just as important. Considering how frequently we use social media this should give you reason for pause. 

Your opposing attorney keeps an eye on your online behavior

Family law attorneys understand the importance of electronic communication in family law cases. When a new client signs up with an attorney, he or she immediately hops on social media to look at the opposing party and their habits. You should expect that your opposing attorney is doing the same. On top of that, your opposing party in the case has saved communications from you. Attorneys receive information and text messages all the time from clients.

There is no way to stop your opposing attorney from at least becoming aware of those communications. Attorneys and clients work together to decide how to use evidence, if at all. However, electronic communications are an indication of how you should expect the opposing party to play their hand. 

Do not underestimate how a text message or social media post can swing a family law case. Even seemingly mundane and banal text messages can be enough to harm your case. With so much of our communications done electronically, it is close to impossible to try and remember all your social media and text message conversations.

Financial aspects of family law cases

Spousal maintenance and child support are two of the most direct ways that finances apply to family law cases in Texas. Spousal maintenance involves the payment of money from you to your ex-spouse (or vice versa) after the divorce ends. When your spouse cannot meet their monthly obligations you will need to pay spousal maintenance.

Conduct matters when considering community property wasting. Wasting community property is a major issue in divorce cases. Now those text messages take on added importance and meaning. 

Your net monthly income determines child support. When social media communications show that you have multiple streams of income your child support payment increases dramatically. Do not be surprised when you see a discovery request from your opposing counsel staring you in the face at the beginning of your case. Working with an experienced family law attorney helps face these challenges. 

Social media usage can keep everyone honest

On the other hand, social media usage can keep all parties honest about their lives. For example, let’s say that your co-parent will be on the hook for child support after your child custody case. An hourly wage job yields a relatively small net monthly income. This hourly wage amounts to an average income. From that, you can expect to receive an average amount of child support, right?

Not so fast. If you are aware of her electronic communications, there is going to be more child support coming to you than that. You become aware of a back-and-forth messaging event on social media where she traded stories about great side jobs. From that, you come to find out that she has worked for a successful cryptocurrency-based business for the past five years. 

She had never let on about the extra income. On top of that, she never would have let you know that she had earned this income if you hadn’t stumbled upon it. Now that you have the social media messages showing what the extra income was your co-parent’s child support obligation just increased a great deal. Proving the income in court matters most. Working with an experienced family law attorney gives you a leg up in this discussion.

Infidelity and social media as proof

Most people going through a divorce would never post online about their new love interest. That is lesson number one as far as behavior not to do. However, even though your spouse learned this lesson does not necessarily mean that their significant other has. While your spouse can control their behavior doing so regarding a significant other will not prove as simple. 

Checking out the paramour’s behavior online reveals a list of “do not do’s” having been done. Constant talking about your case. She talks about you, your family, and even your attorney online. On top of that, she relates stories your spouse tells her about the incidents that occur in the courtroom. Needless to say, this is classic behavior that is counseled against by attorneys. Affection blinds your spouse and he does not tell their paramour to quiet down.

You seize on these messages and show them to your attorney. He does what any self-respecting family law attorney would. That is, keep the messages you showed him and search for more on his own. These messages will serve as the basis for showing the judge that not only does the paramour not have respect for the court, but your spouse does not either. 

Dating during a divorce

One of the most common questions the attorneys with the Law Office of Bryan Fagan are asked relating to divorce cases is: can someone start dating before the case is over? On the one hand, this question is understandable- many people want to move on with their lives sooner rather than later. On the other hand, dating during the divorce is also risky. It opens you up to potential liability. Your marriage is not over yet. You are spending marital property on a girlfriend or boyfriend. Wasting community resources on a paramour is not smart. 

On top of this, using a dating website to find a partner during the divorce also presents your spouse with evidence. Suppose that your spouse gets a hold of your dating website profile. This is a major issue in your divorce. Dating profiles can exaggerate qualities but they can also truthfully provide information about your current state of mind. 

There is no faking your way out of evidence found on a dating website. Trying to argue that you were there for any other reason than finding a date is a waste of time. Once that evidence is found it would surely lead to more. Discovery requests will result in you having to turn over sensitive information. 

Is that a threat? Examining your electronic communications more closely

It has been described to me that a family law case feels like having your back against the wall for an extended period. The pressure that mounts on you is unlike what many people have ever experienced. Needing to make decisions that are often the “least bad” option rings true for many who have gone through a family law case. 

During that pressure comes a desire to try and do whatever you can to gain an advantage. That advantage could come as the result of a threat made against your spouse or co-parent. The threat may well have been an idle one. Something that you never intended to see the light of day. Additionally, the words that you used were not anything that you truly meant.

However, as discussed earlier, your social media and text messaging habits tend to rear their ugly heads in a family law case. What you said out of anger or frustration to your opposing party may well find a place in your family law case. When that happens, it tends to cast you in a very negative light. 

Text messaging tends to escalate arguments

We have all heard the saying that there are things said via social media and texting that would never be said to a person’s face. Saying something provocative or mean to a person online does not carry with it the same stigma as saying it to the person’s face. It almost feels like the other person isn’t even there when it comes to social media engagement. 

Seeing the other person’s words, and then your own, fly across the screen in quick order makes it easy to want to escalate and say more and more hurtful things. Next thing you know- you are taking a small argument and making it into something completely nasty and over the top. Talk about making a mountain out of a molehill. This is exactly that situation. 

Violence and threats of violence are something that is very rarely discussed in conversations with people in our daily lives. However, doing so online or via text message is more common. Again- we just don’t feel the connection, the “realness” to the conversation. So, we go about our business and say what we want. The repercussions just don’t seem to be there. 

Getting text messages admitted into the record of your case

Despite what many people think it is not so easy having text messages and other online/electronic communications admitted into your court case. An attorney cannot just march up to the judge and throw down a handful of copies onto the judge’s desk. Rather, more effort and time must be put into the preparation of the case. Among other reasons, this is why having an experienced family law attorney by your side comes in handy during a family law case. 

Being able to prove to a judge that the message is what you say it is can be looked at as step one. Showing the court that the text message was sent from the person you say it was sent from is step two. This is otherwise known as the process of authentication of evidence. 

To have these text messages introduced into the record you will need to have your spouse admit he or she sent the message. Or, you may have another person testify to seeing your spouse send the message. These are unlikely to be of help in your situation. How many times do we have another person looking over our shoulders as we send a text message? Not very often. The other option is to get your spouse on the stand to substantiate their message. 

How you obtained the potential evidence is also important

Breaking into your spouse’s phone or email account to obtain an electronic message is known as the fruit of the poisonous tree. In other words, because you obtained the information using illegal means the information itself is not admissible in a courtroom. Talking with an experienced family law attorney before you go into television detective mode is a smart move. All the work you put into obtaining the information could be pointless. 

Keep in mind that it is not just divorce cases where evidence of this sort matters. Child custody cases can turn on a dime when it comes to text messages as evidence. For example, you or your co-parent using text messages to show character or behavior traits becomes helpful to a court. Imagine a situation where you and your co-parent are both trying to ask for primary custody of the children. Text messages showing your co-parent using nasty language or referring to the children negatively can swing the case. 

Of course, using text messages and social media use effectively can be a challenge in itself. Interested in learning more about doing so in a family law case? Contact the Law Office of Bryan Fagan for a free-of-charge consultation today. 

Questions about the world of Texas family law? Contact the Law Office of Bryan Fagan

Contact the Law Office of Bryan Fagan today for a free-of-charge consultation with one of our licensed family law attorneys. Our experienced family law attorneys offer free-of-charge consultations six days a week in person, over the phone, and via video. Learning more about family law and its potential impact on your family is what a consultation provides you with. 

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