Episode 8 - Divorce and Social Media
Welcome to the top Texas Lawyers podcast. This podcast is brought to you by the law firm Abercrombie and Sanchez P LLC.
Your hosts are Brian Abercrombie and Samuel Sanchez. Brian has been practicing law for 18 years and his board certified that sort of legal specialization in the area of family law. Sam has been practicing for 13 years. His license in both Texas and Florida and as a certified mediator. This podcast is for informational purposes only and all views are the opinion of the hosts. It's not designed to provide legal advice for your particular legal matter, and it should not replace the advice of.
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Hello and welcome to the top Texas Lawyers podcast for January 30 first. Last day of January of twenty twenty. Well, come in with me, as always, is my partner, Sam Sanchez.
I don't see him doing well, Brian. Doing well. Glad to be back.
Yes. Yes. So we got some exciting topics today.
Like I said, we were starting off the new year with some new stuff and new topics.
So we wanted to talk about social media in the context of court and family law. So, I mean, social media can apply, I think, and across almost all spectrums of law. But specifically, we'll talk a little bit about family law. So, Sam, you want to take it away?
Sure. Let's talk a little bit about, you know, we like to start with our celebrity news or celebrity inside. Yes. And this is clearly one that definitely draws the attention of stars. Stars are all over social media. Instagram, Facebook, Snapchat. Yes, it is. And inevitably, that and coupled with the press, you know, they don't find a lot of privacy. And that can obviously lead them into all sorts of peril. Great example. Ben Affleck and Jennifer Garner. You know, I think they call him Ben. Exactly.
You know, Ben Affleck feeling like he's, you know, pretty impenetrable starts, you know, going on benders hit in strip clubs, social media and press following him around.
Inevitably, that led to the demise of that relationship. You know, we've had some pretty high profile encounters as well. I think Channing Tatum and Jen into one that's still playing out somewhat in social media. You know, I think he's he's gone to social media to try to kind of plead his case to the public in the hope that maybe he will sway the court, which is not always a great idea.
No, not usually not my experience at least. And we can go as far as like billionaires.
Let's talk about Jeff bases. Right. You know, obviously, that whole thing came to light from social media. Yes.
Social media is you know, when we obviously when the two of us started practicing law, social media was kind of an afterthought. There was a few little things out there, but not much. Now it's part of everyday life. I mean, I think people are looking at their phone, you know, hundreds of times a day. People are all over Facebook, Twitter, Instagram, you know, all the different ones. And so, you know, your life is online as well as they were talking about.
By the time kiddo born, now is 18 years of age, we'll have something like thirty thousand, at least thirty thousand data points within the you know, within the realm of the Internet and social media and all that kind of stuff.
And I'm sure if you're if you're a child and you're halfway involved in social media, it's going to be a heck of a lot more than thirty thousand.
Oh, absolutely. Now, there's you know, I mean, there's, you know, the rise of, you know, the downfall, decline of Snapchat, uprising, tick videos.
I mean, these are all things that, you know, when you're young and even when you're not young, you start doing you think, like, these are just fun and they get addictive. You know, it becomes a part of your everyday activity. And those can come back to haunt you because what you think is innocent at the time that you post can be used against you later on in court.
So you've got you've got celebrities now that are having to backtrack, apologize for tweets they made when they were 16 years old. I mean, it's kind of crazy.
Oh, it is absolutely crazy, especially because you just don't know what the future holds. You know, you think you're a struggle and actor, comedian, you know, a business person, an athlete. And then all of a sudden you get shot into the limelight, you know, 19 years later and people go back and they research all those kinds of things. And now it's, you know, the click of a button to go back and see those, because most of the time you can't get them off.
Yes. Once once you put something out into the into the Internet world, universe. It's sometimes that never goes away. You find that out. A lot of celebrities, you'll see will post something quick on Twitter or Instagram and then they'll try to take it down. But somebody is already screenshotted it and it goes viral. And then all of a sudden they're a national laughingstock.
It's absolutely true. And I mean, divorce is complicated enough as it is family issues, you know, whether it be a modification, if you're trying to change conservatorship or custody, change possession and access, you have concerns about the other parent. You know, divorce is complicated all on its own without adding in social media, because as we all know, you type something into the computer or in your phone and you post it and the context is lost on a lot of people. And so something that may be innocent can absolutely be construed in a negative way that could hurt you.
I mean, I'm talking and when I talk to clients about divorce cases and I talk to them about social media, you don't ever want to delete anything because that can be looked at as you're either hiding or destroying, potentially destroying evidence.
You want to go into a social media black hole, I think at least during the pendency of the divorce, because anything you put out there can be misconstrued, it can be taken out of context, like you said, it can be, you know, and you especially don't want to be tweeting about the other parent or Facebook thing about the other parent or anything like that, because that's that is a recipe for disaster.
Absolutely. Amena and Spoil Asian is a big problem. Courts and more and more have, you know, typically what's going to be called a standing order, which is going to prohibit. Once you start the process, prohibit you from deleting or destroying, tampering with, you know, electronic files, postings, media accounts. And so a lot of people go in after the fact, after they've been served or after they file to try to do that.
And it's a colossal mistake and really comes back to hurt them tremendously in any case.
And I expect that, you know, what you put out there on on Facebook, you know, to a reasonably competent attorney, if you're ever put on the witness stand for a cross-examination, just expect that your words may be maybe thrust back out against you.
And that can be something as as benign as sharing an article or retweeting an article that you might have seen. You know, what did you mean by that? You know, weren't you trying to infer this from from posting that article? I mean, it can really be thrown back in your face.
So you have to be super careful when you're going into the divorce context or a child custody case, because, you know, I've got I'm sure you've got a ton of stories and I've got a ton of stories about, you know, how social media has impacted our case.
And it's even the innocuous things, Brian, you know, like the background in a photograph that you post. You may think, well, you know what, all anybody is looking at is really me in the photograph. But when it comes to litigation, you really take encompass everything in a photograph. Are there bottles of wine? You know, who are the friends that are in there? What are their backgrounds? I mean, it just goes on and on and on.
So you're absolutely have still a very funny story. One time I was representing a gentleman who was divorcing his wife and we were in a court case and she says swearing up and down that she never drank alcohol in front of the children, never drank alcohol.
I mean, just swearing up and down. So what I did was just blow up a picture on her Facebook made it about, you know, about 5 by 7 and presented it to her. It's it's her holding her child in one hand and holding a beer the other.
So, you know, that kind of blew her all of her testimony about how, you know, she didn't drink alcohol around their child to, you know, completely out of the water. And she was on a summer boating trip. And apparently, I guess she forgotten that that picture got taken off the boat.
And there she is in the swimsuit with the with the beer in one hand and the kid on the other. So you have to be like I said, you have to be really careful about what's out there.
Absolutely. And the thing you know, the thing I always tell clients is, you know, just think in the real world, it takes years to build a reputation, good or bad. It takes a long time to do it in the courtroom. It takes seconds. It takes seconds to build a reputation, lose rapport with the court, lose the trust. And that really taints everything else that comes from or enhances everything else that comes from you. Subsequent to those types of events. So I made kind of a short list of things that I thought we could kind of bounce off of and kind of give people some forewarning about what that's like.
That's a super point that you made, because if you ever get to presenting a case in court concerning concerning your divorce, just remember that, you know, if you need three days to present your case, you're probably going to get one.
If you need a week. You're probably going to get three days, you know. So the judge has got a very, very. The judge or jury, whoever is deciding your case has a very, very, very short window to see what your life looks like.
So impressions that you make are going to make it are gonna go a long way because there's a very, very small window of information that they're gonna get to take a look at that could.
Couldn't agree more, Brian. Couldn't agree more. So let's talk about some things. I think you're kind of the highlight reel of things to contemplate or consider. Keep in mind, if you're going to file any type of case and you have social media presence, as most of us do, first things first. I knew that the planning process in relation to filing the litigation can be as important as what you do once you've started that process, meaning that you don't want to tip your hand. Right. You don't want to jump the gun. You don't want to get ahead of yourself. Because a lot of times what you do in that situation is you give the other side the opportunity to perhaps take down those negative posts that you plan to use or close an account that's no longer available or block you. And so what happens is we get emotional, right, and get emotional in these types of situations. And the first thing you do get mad is what do you want to do? You want to unfriend somebody, you want to block them in social media or you know. Doing that can be a colossal mistake because it instantly puts people on guard instantly, they start thinking, well, if they did this, what could be next? And perhaps they're listening to this podcast saying, well, my gosh, you know, these guys are saying, I need to clean up my act. I'm going to do it right now because I anticipate something coming down the pipeline.
Yes. And like I said, that's where the social media black hole becomes paramount. Because while you can't while lawyers can't subpoena Facebook records, or at least it makes it very difficult to do because Facebook is located in California, they can. There are ways to download your entire Facebook history, including everything that you everything that you have a common and on everything you've ever shared, not just the post that you've made.
So going in there and trying to scrub your social media is often a bad idea. You might have minus well, just let it be out there and, you know, and figure out a way to, you know, to discuss what's on there.
But the best thing to do is probably not if you're going to contemplate divorce or custody or anything like that, even a criminal case, it's best probably to stay off of social media for a while.
There's not a case, not a type of case that you're going to get into that this could be problematic. I don't care if it's probate. I don't care if it's criminal. To your point, family civil. I mean, if some smart lawyer is always going to go to these points of reference to try to disparage witnesses or parties to their benefit. So just be careful with it. Second thing I would tell you to be careful about is oversharing. Sometimes even potentially incriminating yourself. Right. So the last thing that you want to do is, you know, go have a party with a bunch of friends, get intoxicated, you know, run around and then, you know, they have their posting, hey, we're at the police department because you got a P.I. or had a terrible night because such and such got arrested for a DWI or got in an altercation, because, you know, whatever those things may be, we feel like our lives are open books a lot of times on social media. And that could be just a tremendous mistake because putting that kind of negative information about yourself or, you know, you and a cop can absolutely get detrimental to your goals in the case.
Yeah. I mean, so that's where that's a good point, because that's where all the lot of these celebrities get in trouble. They may have kept their phones in the hotel room or kept their phones at home and they went out to this dinner. And then all of a sudden somebody sees them, snaps a picture and then posts it. And then all of a sudden it's viral. I think one of the gentlemen that was dating one of the either the genders or the Cardassian got caught in that trap, which was he was out with another girl and somebody snapped a picture of him at the at the restaurant with this girl. And hey, that's not his girlfriend.
Right. Right. You know, and, you know, social media, the thing about it is you write that six degrees of separation, everybody's connected pretty closely at this point. The world has gotten substantially smaller with the digital imprints that we all have. And so if you think you're alone, very rarely are you. Everybody has a phone, which means everybody has a camera, which means a lot of those people can post instantaneously and you don't really have any control over that. And so, you know, you know, simple searches can bring up a lot of that information. So you just need to really contemplate what you're doing as you anticipate or if you were already involved in any type of litigation because it will come back to haunt you.
And like I said, this goes across the gamut because there's been many a many a criminal defendant that's gotten convicted because of silly things they're posting online.
Oh, not only that, Brian, but people will check it. Right. You know, they'll say, hey, I'm checking in at all these different places, even though maybe I'm not posting what's going on there. Well, then somebody says, well, where were you when you say something else? And now they've called you a liar. And once you're a liar in court, it's really hard to recover anything that you say could be, you know, true information, of course, always going to be more skeptical of your testimony. The information you present when you're caught in those types of traps. And smart lawyers will put you in those boxes many, many times.
Yes. And I mean and keep in mind that it's not just Facebook post.
It's not just Twitter posts. It could be you know, they've got tons of new stuff. Now they've got I mean, every day I think they're coming up with a new app. I have to ask my 10 year old kid what what new apps are coming out also, because, I mean, I don't know.
There's you know, I know a lot of the kids are gravitating towards Tick-Tock these days. And there's, you know, celebrities and everybody you can think of posting Tick-Tock videos or Snapchat, which as I understand it, you post something and then it goes away after a while. But, you know, like you said, with the ability to screenshot stuff, excuse me, it never really goes away.
I agree. Next point, I would tell you that you're going to want to kind of avoid, even though it's a huge temptation, is bashing the other party boys like the ultimate soapbox, the ultimate open mike event. When you have social media, you have a substantial amount of followers or even if it's just friends and family. But you want to get the message out about how you've been wronged and how the other person is just terrible and horrible. And then all these incredibly awful things, you know, a lot of times that may make you feel like it's cathartic. Right. I feel better once I got it off. Yes, but then it comes back around all these, you know, vicious and vile things potentially that people say over and over and over again. And it can really have a negative impact on the way you're perceived as you enter the courtroom.
That's especially concerning, too. I want our audience to pay attention, is it during divorce or modification when you're talking about children? You know, a lot of times what I'll tell clients is if you can take the high road you always want and take the high road, if you can come into court with clean hands, that's always going to be the best position to find yourself in, because the SEC. Anybody you talk about how you know you are treating somebody who you're related to, that you had children with, you know that you built a you know, a substantial amount of assets together, whatever those are. The more that you look like you are, you know, taking the little road that you're really the person with no less integrity, really in the relationship. It it dissing disinclined a court from wanting to give you what you want, because, you know, we all know that court is not black and white. The law is the law as the courts are made up of people in black robes who like you or dislike you for 100 different reasons. And social media can definitely be one of those things that gives a court pause as to whether or not they want to give you that deference when mouth matters most.
And I would tell you that the character witnesses that you're gonna call typically in your case are going to be friends and family. They're going to be people that are probably your friends on on these various onslaught on Facebook or whatever social media outlet you're using. So they're gonna see all this stuff. And then that's going to be part of the testimony potentially, and that's going to come out. I'll also give you a good example as well as a word of warning is oftentimes when you have older children, your children become become your friends on Facebook and things like that.
So, you know, if you're out if you're out there trashing the other parents about what they are doing or not doing, your your son or daughter is going to potentially see that. And then if the judge knows that you're your son or daughter is a friend of yours on Facebook, and then they're seeing your posts about how bad the X is that that goes a long way and an alienation type of argument about what you should or shouldn't have.
With respect to your your child custody order.
Oh, you couldn't be more correct. Bryan. And the other thing to keep in mind is you're considering these when we talk about incriminating. I don't mean just like criminally. A lot of times. I mean, as an example, you know, your social media and it out with friends and the person that your spouse thinks that you're having an affair with happens to be there, you know, in these photographs, you know. And so these are a lot of things that I would tell you. Like if you anticipate something like that, it could be as simple as retail therapy. Right. You know, I'll tell you, you know, you're going in and you're saying there's a waste claim because mom's just spending money left and right for no reason. And then you go up and you pull up her, you know, check in history. And she's checking in at Chanel. She's checking in at Neiman's. She's checking into the spa. She's and you're just like, look at all the money that's being wasted. You know, in the estate. So there's a lot of different ways that social media can be applied in the case. And we think like incriminating.
Well, I'm not out committing a crime. I'm just doing daily life. But if that's not the picture that you want to paint, then don't put it on social media.
Yes, there are instances where where social media can help your case. I mean, if you're if you're looking if you're trying to paint the picture of being an active and involved dad and you can show your Facebook history as you're checking in your son's little league game or your show, you're showing up at the class event and you've got pictures and stuff like that.
That's going to help you. That's also going to help bolster your case. But I wouldn't advise going on a Facebook or Twitter propaganda campaign to show what a great parent you are, because that does you know, oftentimes if you look at the entire history of your page, it looks very self-serving.
Yeah, I would agree. But I mean, I think it's you know, if you can use it to bolster who you are in a positive way, you should absolutely have that conversation with your attorney because it can be very powerful. The other thing I would tell you to avoid, if you can, is the mistake of trying to snoop or goes to your ex or your current, you know, getting hacking your social media account, trying to get on and see what's happening, you know, altering or modifying them, putting something on their wall to make them look, you know, embarrassed or it put them in a negative light. You know, those those types of things, one or typically violations of those standing orders that I talked about. But in addition to that, you know, they can get, you know, all kinds of hot water, potentially criminal liability and some of those depending on on the breach. Absolutely. Both state and federal. So there's all kinds of new laws about, you know, accessing, you know, violating the electronic privilege. Right. Not having the passcode, but guessing it, hacking it, you know, downloading a program that's like a keystroke logger so that you can see everything that's typed. You know, you really need to know what's going on in your state and seek the advice of competent counsel to advise you as to what you're doing and whether it's legal. I mean, this can go all the way to tracking somebody who's position, right, g._p._s on their phone or putting a G.P.S. tracker on the vehicle. You know, these are all things that through social media a lot of times you can.
Yes. So so spying on your ex is definitely, definitely a bad thing and showing up where your ex's ex is because based on their Facebook searches as a as a major, major problem. And you want to avoid this.
Yes, without a doubt. And the big piece of that to think about personal safety, because we've been talking about the negative implications of it. But there's also just this personal safety that I always want to tell clients about.
Social media can be almost like gasoline on a fire. It can antagonize a situation if, you know, like let's say there's been domestic violence or family violence and or, you know, you know, you run the potential of if you're the person having an affair, having a very, you know, upset and pissed off ex show up at a restaurant that you're there because you're checking in or your post and stuff on social media because you're at this club with all your friends drinking and having a great time.
I mean, it can really just make things worse for you. Any case. So just really contemplate what you're doing when you're doing what you're posting. If you're going to go into a case in that situation.
Sure. So can take pictures of your new house or your new truck and your child support case can have to have a pretty big impact on, you know, if you're going to court and saying you're trying to get a child support reduction, you probably shouldn't be posting pictures of this great house or great car that you have or you're out looking at.
The stake in ShopHouse every weekend, so I call I call that humble bragging, Brian humblebrag.
Yeah. I'm humbled, but doggone it, don't I have some cool stuff? You know, I just bought my Corvette, but I really don't want to be able to have to pay child support or, hey, I'm really struggling over here as a housewife. But doggone that that massage in that, you know, daytrip to Neiman's where I purchase some Gucci belts and a new purse, by God. You know, I mean, life is hard.
Well, retail therapy is incredibly important. Can be very important.
But these are the kinds of things, to your point. Absolutely. That lawyers and courts will use against you. If these are the things that you're trying to address, you know you know, a simple example would be a personal injury case. You know, you're you're involved in a car wreck case and you know, you're out in the front yard doing the ball with the kid and you're doing backflips and showing him how, you know, Agile and Dasa, you are. And then you're going to show up in a court and kind of limp in there and say, I've got all this pain and injury and they're going to, you know, bring up, hey, look at this cool post that you did right before the Super Bowl jumping around, you know, and you seem fine. So, you know, these are kinds of the things that, you know, social media, you don't really think about it as you're doing it because you just think, wow, what a cool video or that will a great man or how fun. I want to share that with the family. Just gotta remember that, you know, it is available as family. The last point I would make is check your settings. OK. Because, you know, obviously in this day and age, there's many things that, you know, social media is used for. You know, criminals track individuals to know when you're on vacation.
If you're posting pictures in Grand Cayman, it's not likely that you're at your house. So, you know, the time you know, when you post those, you know, the same thing with, you know, family divorce issues, you're going in and they're looking at, you know, what are your settings if they're open to the public? Then it's much easier for individuals to access the information that you're putting on social media. So, you know, try to keep those close knit during these types of cases. But even then, I always tell clients, look, they'll say, oh, you know, hey, I'm not worried about it. My settings are private. They're only my friends and family. And I would love to tell you that your friends and family always love you, that they always just want to, you know, think of you and do the things that are right for you. It could be inadvertent or it could be intentional that they sit there and they're upset with you or they don't like what you're doing or the way you're behaving and what's transpiring, or they just love your husband or wife or, you know, relative or children. And they want to share that information. And so you think it's private, but it's going to get out. So don't think it's just because you have private settings, it's secure.
You also need to you also need to consider what your kids are posting, what your kids are putting out into the universe. If you're the parent who says that you're you know, you're the one who's actively involved with the children, but they're allowed to spend seven hours a day on social media and you can find out how long, you know, your kids are spending on online and you're not monitoring that. Or if the kids are posting stuff about the divorce or if the kids are posting, you know, inappropriate things that can impact them and look bad on your ability to parent your children.
So if you're you know, if your son or daughter is posting inappropriate pictures or jokes online and things like that, number one, they could have a problem there with their own their own selves as they go through life. But in addition, it could affect your case in a negative way, because the court then looking at you saying, well, what kind of parenting is going on at your house if if this stuff is allowed to go on.
Absolutely. Very quick, Krick. And great point. Great point.
So, I mean, there's a lot of great things about social media, obviously, you know, families far apart. You know, you get to kind of still share each other's lives, be involved, get them participate, see what's going on.
But, you know, there are risks involved in that that are inherent in just sharing information. And so I would encourage anyone who's got an account, who has children, who's going to be in a family law type case to really use a small label with it, contemplate what you're going to put on there and where potentially you could go.
Yes. And you also always have to be careful with, you know, with Facebook about who you're attracting as friends and who's looking at your posts, like you said. If you're if you're settings are all open to the public and everybody can see everything, well, everybody's going to know about you.
Everybody can find out about you if it's close to just a few of your close friends. That's one thing. But if it's open to a thousand friends or more, a lot more people are going to know your circle is going to be that much wider. But I've had refit. You know, Sam and I have both had numbers of cases where people reconnect with people that they went to high school on Facebook. And that becomes, you know, fertile ground for, you know, divorce cases and evidence to come alive, come to light where many, many relationships are rekindled on on Facebook or at high school reunions or different things like that.
Oh, yeah. The one that got away, Brian. The one that got. The great white buffalo, right? Right.
But but it goes that the same thing holds true for for Twitter, I know that we have a president that likes to take to Twitter quite frequently. And I know it's a very, very popular media where you can express your opinion or express your thoughts in 140 characters or less. Right. You've got to be real careful about what you put out there. And, you know, because you can't convey tone. You don't people don't exactly know what's going on. And you your fever posting stuff can make you look. It can pay you in it and in all kinds of different lights and a good and a good attorney taking a look at your Twitter page. Could paint you as, you know, whatever they wanted to potentially paint you as in a negative way. So you have to be really real. Like I said, really, really cautious. Really, really careful. While their social media is great tools to get information. It's great tools to share information. It's also something that it's one of those things like this, like the great Ben Parker, Spiderman's uncle used to say, with great power comes great responsibility.
So it's something that has to be used with great responsibility. I love that line of that line. Well, you got anything else for us? That's all I have for today. I think we've got some great topics coming up in the next couple of weeks. But I definitely think this was a hot button one and I think it's just going to stay a hot button one. So definitely. Great, great, great. Great topic to bring up.
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