The Impact of Technology and Social Media Evidence in Divorce Proceedings

Today’s technology has changed the law in many ways, including the types of evidence presented in Court. This is true in all areas of law, but especially in family law cases. Among these new types of evidence are screenshots. A screenshot is used to permanently capture the contents of one’s phone or computer screen by taking a photo of what is displayed on the screen. Social media posts and text or email conversations can be screenshotted by a follower or recipient of the message, saved as an image, and then sent to others via email or text message. Knowing the implications of this type of evidence is important when responding to discovery requests.

Because of the ability to take a screenshot online and of electronic communications, it is imperative that those going through a legal proceeding be mindful of what they put on the internet and what they communicate to others electronically. Numerous social media platforms exist for friendly, professional, and romantic networking and communication. Some of these platforms include Facebook, Instagram, Twitter, LinkedIn, Slack, Groupme, Bumble, Tinder, and Hinge. Each of these platforms contain the profile photo and name of the person creating the post, allow for people to include images and text in their posts, and allow direct messaging between the account owner and another individual or selected group of individuals.

In addition to these social media platforms, emails, and text messaging, iMessage has a location tracking feature which can be accessed by going to a person’s phone contact information. While Apple does not allow you to track someone’s location without their consent, you can view their location if they have previously shared it with you. This may be common for spouses who previously shared their location with one another prior to separation and forgot to stop sharing their location. A spouse may also be able to view your location if you share your location with a child or mutual friend. Anyone who has access to your social media, location, texts, or emails, can screenshot the information, which creates the possibility that it may be used against you in your divorce. Even when you think you may have blocked your spouse’s access to your online profiles, they may find a way to gain information on your goings on by creating a fake account or by using others that are still your online friends to assist them in getting evidence against you.

Whether social media can be admitted into evidence in a divorce proceeding depends on the actual evidence. During an evidentiary hearing, all contested evidence must be authenticated by showing “that the item is what the proponent claims it is.” Ind. R. Evid. 901(a). While other factors such as relevance and hearsay may prohibit social media evidence from being admitted, this type of evidence may be used in divorce proceedings to show the character of the spouse or as insight into financial resources which may impact custody, child support, and the distribution of assets.

While it is possible to alter or manipulate an image, a screenshot typically includes the time of day the person took the screenshot, and the contents of the screenshot are almost always time stamped with the date and time the person made the post or sent the text or email. Additionally, each post, message, and account can be traced through an IP address to the individual device from which the post was made. Thus, it is possible to authenticate a screenshot of social media posts, texts, or emails sufficient to be admitted into evidence during a divorce.

It is extremely important to be aware of your online presence and who you choose to add as online friends. Even if you delete something from the internet, it may never truly be deleted. If you have questions about the use of social media in divorce proceedings, please contact one of the experienced attorneys at McNeelyLaw LLP by calling (317) 825-5110.

This McNeelyLaw LLP publication should not be construed as legal advice or legal opinion of any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult your own lawyer on any specific legal questions you may have concerning your situation.