Electronic Footprints in Domestic Cases

Kellam T. Parks
Managing Member of Parks Zeigler, PLLC

Times have changed and depending on which side of a domestic issue you are on, it could be for the better or worse.  In the past, the telltale signs of infidelity were unexplained credit card transactions, lipstick on a collar, or a phone number found in the pocket.  In today's technology-driven social media world, discovering infidelity might be as easy as reading Facebook or text messages.  In civil cases like divorce, lawyers find a great deal of information on social media that they use in court, whether it be texts, status updates, pictures (some found on sites where the targeted person was tagged) or events logged.  This information can be found without breaking any ethical boundaries or laws, and without the targeted person even being aware of the information being gathered.  This extends beyond potential adultery, of course.  If a party claims he can’t afford child support and there are photos of him vacationing in a sunny island resort several times a year, you can be certain he'll have some explaining to do before a judge.  Perhaps a mother states that her boyfriend is not living with her, but yet said boyfriend has pictures of her home on his social media pages stating it is his home.  For your own safety, as well as possible future court action, you do not need to update the world of your every action or location.

Emails and texts make communications between parties permanent.  People, especially younger people, tend to text or post on social media without giving much thought to what they are saying. Too often texts, emails and posts are outbursts from anger and/or frustration. As a result, texts/posts often times give a negative impression (sometimes valid, sometimes not).  As for social media, don’t forget those mutual friends and followers that could share such information with an ex-spouse or a child’s other parent. Please do not become the latest YouTube sensation participating in activities you would not want seen on the front page of world news.

Once a lawsuit has been instituted (or even if seriously contemplated), all evidence needs to be preserved.  Deleting such information can be deemed by a court as "spoliation," which is the intentional withholding, hiding, altering or destroying of evidence relevant to a legal proceeding.  While there is no independent cause of action regarding spoliation in Virginia, sanctions including potential granting of adverse summary judgment can be applied. 

The bottom line is that the old adage of "think before you speak" is even more important in the digital age where communications are forever.  I always advise my clients to imagine that the judge is looking over their shoulder at all times and act accordingly.

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