The Dark Side of Social Media
I. Introduction
“Character is defined by what you would do if you knew you would never get caught...” This credo was posted on a man’s MySpace page. Perhaps not the type of statement you would choose to post, but what harm could it possibly bring? Depending upon when a statement is made to My Space, Facebook or any other social media website, this kind of statement could be devastating.
Do not be so quick to post on Facebook or anyplace else. Why not? Because your words may come back to haunt you later.
How? These days communication is fast and our common sense filter is lost in the rapidity of sending an email blast or posting on Facebook something as innocent as what your family ate for dinner last night. Use extreme caution in what you post on websites, type in a text, send in an e-mail, or even what you say.
II. Repercussions of Social Media
Facebook, Linked-In, dating websites, Twitter, texting, and e-mailing. The majority of the world utilizes at least one of these technologies numerous times every day. Facebook is a fun hobby for millions. It seems as though most single people are on Match.com or some other dating website. If everybody does it, it must be safe, right? Not so fast.
You have just applied for a new job. As part of the background check, your potential employer researches Facebook to learn more about you. Imagine the impression you will make when she opens your Facebook page and reads about your last beer drinking binge and sees your favorite, personal logo “Drunk People Crossing.” Still think you are a contender?
To be sure, social media is a powerful tool: “A California woman used the social networking site Facebook to locate her two children, who were kidnapped 15 years prior by her then husband. The mother, Prince Segala, searched Facebook and was able to locate her daughter. Despite the profile being pulled days later after Segala conversed with her daughter and expressed wishes to renew the relationship, an arrest warrant was issued for the father and the two children were taken into custody by the Florida Department of Children and Families.” Nick Klopsis, New York Daily News, June 7, 2010.
III. How you can hurt yourself in family law cases.
If you are contemplating divorce (or simply want to make sure you stay married), it is a good idea to refrain from posting anything on Facebook, Linked In, or from texting and “Tweeting” (sending a text via Twitter). Certainly, your interests will not be served by having a profile on a dating site. After all, family law attorneys use these technologies as treasure troves of evidence.
“The AAML (American Academy of Matrimonial Lawyers) reports that 81 percent of top divorce lawyers are gathering evidence from social media sites, including Facebook, MySpace and Twitter. Attorneys state that the sites have increased cases of infidelity because they allow users to reconnect with past loves or meet new people. Couples’ friends often serve as sources of information, and attorneys recommend that separated spouses refrain from using social networking sites during the divorce process.” Staff, Miami Herald June 5, 2010.
“Divorce lawyers are finding it easier and easier to figure out if their clients’ spouses are lying during a divorce proceeding with the aid of various social networking websites. Lawyers have been utilizing ‘frenemies,’ who may be able to view the spouses' social information even when clients are shut out. ‘People are just blabbing things all over Facebook,’ said Leslie Matthews, a Denver divorce attorney. ‘People don't yet quite connect what they're saying in their divorce cases is completely different from what they're saying on Facebook.’ Martha Neil, American Bar Association Journal, June 29, 2010
Property Division
“A lawyer from Boston said he has seen men claim to be poor or unemployed, yet they have job titles on their Facebook profiles or pictures of them on exotic vacations and in expensive cars. A survey released earlier this year shows that 66 percent of divorce lawyers use social networking sites as one of their main sources for evidence.” Mark Hansen, American Bar Association Journal September 17, 2010
Such was the case for a Texas radiologist who claimed he should get more of the community estate because he was disabled and could only work part-time. However, his Match.com profile listed his activities as hiking, snow and water skiing and horseback riding accompanied by current pictures. In the “old days,” clients used to pay private investigators to dig up this kind of information. Today, people unwittingly tell on themselves by posting the events of their daily lives on internet sites.
Texas is a community property state. Contrary to popular belief, however, being a community property state does not mean that your community estate will be divided equally by the Court. The law says only that “the court shall order a division of the estate of the parties in a manner that the court deems just and right, having due regard for the rights of each party and any children of the marriage.” Texas Family Code, section 7.001. However, a long line of case law has established that in order to prove you should be awarded more than fifty percent of your community estate, you must prove the existence of certain factors, such as:
• the spouses’ capacities and abilities
• benefits which the party not at fault would have derived from continuation of the marriage
• business opportunities
• education
• relative physical condition
• relative financial condition and obligations
• disparity of ages
• size of separate estates
• nature of the property
Murff v. Murff, 615 S.W.2d 696, 699 (Tex. 1981)
Whoa. So let’s apply the Murff standards to our radiologist. Had he truly been disabled and only able to work part-time, it is possible that the Court would have awarded him a disproportionate share of the community estate based on the factors of capacity and relative physical condition listed above. However, the activities posted by our radiologist in this case helped him lose any chance he had of proving he was disabled, and thereby eliminated his chance of receiving more than fifty percent of the community estate.
After the shock of your spouse’s secret family or infidelity has abated, you can be sure that your on-line escapades will be used by your spouse to your advantage by using internet intelligence to prove your fault in the break-up of your marriage, and thus the majority of the community estate . In 1980, the Texas Supreme Court established that a party’s fault in the break-up of the marriage is a valid basis by which to make a property division. Young v. Young, 609 S.W.2d 758, 759 (Tex. 1980). In the Young case, Mrs. Young pled for divorce based on the traditional fault grounds of cruelty, adultery and abandonment. Id at 761. She was ultimately awarded 70% of the community estate’s interest in both parties’ retirement benefit plans. Id at 759.
If you blog, post, text, Tweet or e-mail information that reveals you have hidden community assets or given community assets to your paramour or a third party, you may have opened yourself up to a fraud claim against the community estate. Texas Family Code section 7.009 ( c). Schleuter v. Schleuter, 975 S.W.2d 584 (Tex. 1998). Very shortly before filing for divorce, Mr. Schleuter tendered thousands of dollars to his father without Mrs. Schleuter’s knowledge or consent. Id at 586.
In 2011, the Texas Legislature enacted a statute that enables a spouse, such as Mrs. Schleuter, who has been defrauded of community assets to be awarded a just and right division of the community estate after it has been reconstituted. Tex. Fam. Code section 7.009 (West 2011). For example, Mr. Schleuter gave his father approximately $30,000 about one week prior to filing for divorce from Mrs. Schleuter. Id. At 586. The “reconstituted estate” in Schleuter would have been equal to the $30,000 given to Mr. Schleuter’s father plus the remaining community estate. According to section 7.009, Mr. Schleuter would have constructively received a $30,000 portion of the total community estate. Tex. Fam. Code section 7.009 (West 2011).
Custody Battles
It is one thing to lose money in your divorce because of being “found out” on-line. Although there is a presumption in Texas that parents should be appointed Joint Managing Conservators, “it is a rebuttable presumption that the appointment of the parents of a child as joint managing conservators is in the best interest of the child.” Tex. Fam. Code, section 153.131(b) (West 2011). In a custody battle, however, scrutiny rises to another level. It is public policy in Texas to:
(2) provide a safe, stable and nonviolent environment for the child; and
(3) encourage parents to share in the rights and duties of raising their child after the parents have separated or dissolved their marriage.
Tex. Fam. Code, section 153.001(a)(1)-(3) (West 2011). Family law judges want parents to put their differences aside - no matter the circumstances - and cooperate for the sake of their children. However, a parent who proves unfit, dangerous, mentally ill or simply unable to co-parent, will likely fare poorly before the Court.
A Texas woman participated in some kind of “single mother’s blog” and wrote statements about her thoughts of suicide and other statements which made it clear that she had left her young children home alone, unsupervised, on several occasions. Had this woman not chosen to publicly air her feelings and the daily events of her life, the world, and her husband, would not have been immediately privy to her mental state and potential threat to their children.
MySpace has fallen by the wayside as a popular social media website, but not before it did damage to one man’s chances of getting custody of his children. In the midst of his divorce, this Texas man posted on his MySpace page that “Character is defined by what you would do if you knew you would never get caught” with dozens of pictures of himself and different women all over the world. He wrote further that “I’ve got two beautiful children who are still my first priority...and are the most cherished thing (sic) in my life....” Really? During a custody battle, does this man look like father of the year to the Court? Does he even have time for his children between his liaisons with dozens of beautiful women?
Expressing your anger at the Court over YouTube is another example of using technology to your detriment. “An Army Sergeant who has been in a custody battle with his ex-wife over their teenage daughter took his frustrations out on a YouTube rap, allegedly threatening the judge presiding over his case. Franklin Delano Jeffries II posted a rap on YouTube making threatening comments about an unnamed Tennessee judge. He was arrested and jailed on charges of threatening a judge. Jeffries' lawyers, however, claim he was merely exercising his right to freedom of speech.” Debra Cassens Weiss, American Bar Association Journal, September 7, 2010.
A Texas mother, known for her history of methamphetamine use, posted on her Facebook page “Fire it Up” and also let her followers know that she had celebrated “National Weed Day.” In the Interest of N.L.D., 344 S.W.33, 38 (Tex.App.–Texarkana May 27, 2011).
IV. The Other Side of the Coin
If subpoenaed, do not consider hiding or refusing to produce your e-mail, Facebook postings or the like. A recent study by Duke University found that of 401 cases studied, failure to produce ESI (electronically stored information) is the most common basis for sanctions against a party. Duke Law Journal. Vol. 60:789)
Although unsettled law in Texas, did you know that numerous jurisdictions have held that your “private” settings on Facebook are not really private? The Court in Romano v. Steelcase, Inc. held that the production of a woman’s entries on Facebook and MySpace were not protected by the Constitution’s Fourth Amendment right to privacy. Romano v. Steelcase, Inc., 907 N.Y.S.2d 650 (Suffolk Co. 2010).
Do not be so Hell bent on “winning” that you invite criminal charges upon yourself. Intercepting your wife’s e-mail without her consent, or hacking into her Facebook account may be a violation of federal wiretapping law (the Stored Wire and Electronics Communications and Transactional Records Act) .18 U.S.C.A. section 2701. In Texas, a person commits a criminal offense if the person:
(1) intentionally intercepts, endeavors to intercept, or procures another person to intercept or endeavor to intercept a wire, oral, or electronic communication;
(2) intentionally discloses or endeavors to disclose to another person the contents of a wire, oral, or electronic communication if the person knows or has a reason to know the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection;
(3) intentionally uses or endeavors to use the contents of a wire, oral, or electronic communication if the person knows or is reckless about whether the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection.
(emphasis added.) Tex. Penal Code sections 16.02(b) and 16.02(b-e) (West 2011). In other words, if you do not have permission to log-in to your wife’s e-mail account and read her e-mail, don’t do it. If you do not have the password to your husband’s Facebook account, do not attempt to become a modern day Mata Hari and find out the password through illegal means. You may be prosecuted.
In addition, if you have posted compromising pictures of yourself on Facebook, or sent some texts or Tweets that you would like to retract, be forewarned that in the middle of a lawsuit, these types of communications are considered evidence. It is illegal to delete or destroy evidence as a Virginia lawyer, and his client, learned the hard way. “In what many are calling the largest eDiscovery sanction penalty ever leveled directly against an attorney, a Virginia state judge ordered lawyer Matthew Murray to pay $522,000 for instructing his client to remove photos from his Facebook profile, and for his client to pay an additional $180,000 for obeying the instructions.” @patzakis. eDiscovery Law & Tech Blog. November 15, 2011. What did the Facebook photos show that was so bad? A picture of a widower wearing a tee-shirt which said “I (heart) Hot Moms.” Order. Case No. CL. 08-150 and CL09-223; Virginia: In the Circuit Court of the City of Charlottesville. September 1, 2011. Was deleting this photograph and others like it worth losing a law license. Was it worth being fined hundreds of thousands of dollars?
Some other examples of violation of federal wiretapping laws, include:
• “A Nebraska man has reportedly filed a lawsuit against his ex-wife for surreptitiously placing a listening device inside their child’s teddy bear during a custody battle. According to the lawsuit, Dianna Divingnzzo sought to use information obtained from the recording against her ex-husband during a custody hearing. However, the judge in the case refused to listen to the tapes, citing a Nebraska law prohibiting the recording of conversations without permission.” Dan Slater, WSJ Blogs January 7, 2009. “An attorney representing a man whose ex-wife placed a listening device in a toy bear in hopes of winning full custody of their daughter says he hopes a lawsuit against the woman and several others will curb what he sees as a rise in eavesdropping in divorce cases. In the lawsuit, William Lewton claims that his ex-wife, her father and attorneys invaded his privacy and violated state and federal wiretapping laws with their attempted audio surveillance. Lewton’s attorney maintains that the recordings yielded no evidence of physical or psychological abuse. Brian Sullivan, American Bar Association Journal, April 1, 2009
• “A lawsuit has been filed against a Chattanooga law firm for attempting to use e-mail correspondence intercepted by spyware in a divorce proceeding. The plaintiff alleges that his wife installed the software on his computer, which then forwarded his e-mails to her sister. The attorney accused of attempting to use the e-mails said the lawsuit would be ‘vigorously defended,’ according to the Chattanoogan. Debra Cassens Weiss, American Bar Association Journal, July 6, 2009.
• “Authorities in Arkansas have filed criminal charges against the mother of a 16-year-old boy for allegedly tampering with her son’s Facebook account. Denise New maintains that she accessed the account and changed her son’s password because she was displeased by some of the items he had posted on the social networking site. Prosecutor say that New’s comments amount to criminal harassment.” Debra Cassens Weiss, American Bar Association Journal, April 8, 2010.
V. Conclusion.
These days, virtually nothing you publish electronically is truly private - whether you intend it to be or not. The best practice is your mother’s old advice: “if you don’t have anything nice to say about someone, don’t say anything at all.”
