Technology potent tool in divorce cases

Survey: Number of text messages used in cases is rising.

Clients expect their divorce attorneys to pore over credit-card statements, bank-account balances and property records. But their postings on social media?

“Let’s pull up your Facebook page,” Columbus lawyer LeeAnn Massucci will say. “There’s nothing that you wouldn’t want a court to see, right?”

Parties in divorce and child-custody cases probably shouldn’t be surprised. The possibility that their digital footprints will wind up as legal evidence has never been stronger: According to a recent survey of the American Academy of Matrimonial Lawyers, 97 percent of members said they have seen an increase in evidence taken from smartphones and other wireless devices during the past three years.

And almost all — 99 percent — cited seeing a rising number of text messages used in cases.

“There’s not a case that we have that involves children that we don’t see some form of social media being used as some form of evidence,” Massucci said. “And believe me, our clients are the ones who are hellbent on finding this stuff.”

Online observations in one hotly contested case turned up photos of a young child flashing a fan of $100 bills (the parent had denied having a cashgenerating job).

In another, a man was insistent about hiring a particular company to do a financial evaluation in his divorce and childcustody case. “We kept asking what the big deal was, and he said he had a friend there,” Massucci said.

Massucci’s client checked the friend’s Facebook page, which wasn’t private, and discovered that she was much more than a business associate. The business friend’s postings about dinners, flowers and outings matched dates on debits from the husband’s bank account.

“People are very casual, and just not very careful about what they put out there,” Massucci said.

But they should know that, in cases where custody is at issue, the parties might be asked to provide the court with “all social-media postings related to your children,” she said. “That’s not an easy thing to comply with fully and accurately.”

The academy’s survey found that texts were the most-common type of evidence gathered (46 percent), followed by emails, call histories, Internet data and GPS information.

“Our fellows have seen an explosion of this kind of evidence,” said Joslin Davis, president-elect of the Chicago-based academy. “There is a whole new world out there now for proving infidelity and other types of misconduct in family-law cases.”

Columbus lawyer Amy Weis said people are so accustomed to communicating through texts and social media that they don’t consider the permanency of the exchanges.

“Sometimes, folks going through divorce might want to have a Breathalyzer on their smartphone,” she said. “You get the latenight rants. The spouse sees it, friends see it, friends aligned with the other spouse see it.”

Deleting sought-after evidence could violate court orders — and might not work anyway, Davis said.

“There are companies where, if necessary, we can get a smartphone to them and have them work their magic and tell us what is there and what is not there,” Weis said.

The best plan, she and other lawyers said, is to stop texting and to deactivate social-media accounts during divorce and child-custody proceedings. Phone and online passwords also should be changed if they are known to more than one party.

Avoid blogs, chat rooms and message boards; don’t get tagged in photos or accept unknown “friend” or “follow” requests.

“We’re being advised in (continuing legal-education) sessions to recommend that clients immediately shut down,” Weis said.

Massucci tells clients to go old-school: Communicate by speaking, and skip the texts.

“We’re going back to the ’90s,” she said. “Pretend that you can’t do this.”

The best plan is to stop texting and to deactivate social-media accounts during divorce and child-custody proceedings.