Social media, undeniably, is part and parcel of our lives now. The widespread use of platforms like Facebook, Twitter, and Instagram is a norm, with almost everyone having an online presence. Right.

But how many of you know the influence of social media extends to the courtroom, where digital evidence, especially from social media, has become a crucial factor in divorce proceedings? Yes, it does have a significant impact!

Given the prevalent trend of people sharing personal issues publicly on the internet, it’s no wonder that such revelations are being used in the court.

This blog highlights the omnipresence and significance of social media in divorce cases, where the question of electronic evidence takes center stage.

The use of social media platforms can provide valuable insights and evidence regarding a person’s lifestyle, behavior, relationships, and financial situation, which can influence the outcome of divorce proceedings.

What is Digital Evidence?

Digital evidence refers to any type of information that is stored, transmitted, or presented in a digital format and can be used as evidence in legal proceedings. For example, electronic data such as emails, chats, or social media posts can be considered as digital evidence. 

Digital evidence plays a crucial role in modern legal cases, including criminal investigations, civil litigation, and divorce proceedings. It is collected, preserved, and analyzed to support or refute claims, establish timelines, prove authenticity, demonstrate intent or motive, and provide a factual basis for legal arguments. For example, 81% of divorce lawyers claim to have used social media posts as evidence in divorce cases. 

Digital evidence is subject to specific rules and procedures to ensure its integrity and admissibility in court. Increasingly, however, it is becoming admissible in many cases. 

What is Considered as Digital Evidence?

Here are some examples of digital evidence that are leveraged in court cases:

  • Emails: Emails and their attachments can provide important evidence, such as communication between individuals, conversations, or agreements.
  • Documents/Files: Digital documents, spreadsheets, presentations, or other file types can contain evidence of illegal activities, financial transactions, or other relevant information.
  • Instant Messaging and Chat Logs: Conversations that occur through instant messaging platforms like WhatsApp, Facebook Messenger, or Slack can be used as evidence.
  • Social Media Posts: Posts, comments, messages, photos, videos, or other content shared on social media platforms like Facebook, Twitter, Instagram, or LinkedIn can be used as evidence.
  • Website/Internet History: Information about website visits, browsing history, search queries, or downloads can provide evidence related to online activities or intent.
  • CCTV Footage /Surveillance Videos: Digital video recordings captured by closed-circuit television (CCTV) cameras or other surveillance systems can be used as evidence in criminal investigations.
  • Cell Phone Records: Call logs, text messages, location data, or app usage on mobile devices can be valuable digital evidence.
  • Digital Images/Photos: Images, photographs, or screenshots captured from devices, surveillance cameras, or social media platforms can be used as evidence.

Types of Digital Evidence

Additionally, types of digital evidence can be in the form of:

  • Logs: Logs generated by computers, servers, or networks can provide details about user activities, access attempts, or system events. These include access logs, security alerts, session duration etc. Examples: Database logs, email logs, software logs, network logs, phone logs, access logs, IP logs, server logs etc.
  • Archives: These include ZIP/RAR files, databases, backups, etc.
  • Active data: Temporary files created by OS and applications such as Word processors, images, scanners etc.
  • Metadata: This is invisible and needs a special software to view it. Metadata contains information about other data, such as timestamps, geolocation, authorship, or modifications, and can be used as evidence to establish authenticity or ownership.
  • Residual data: This is nothing but overwritten or deleted data that may contain some evidence on recovery. This also comes under the invisible data category. 
  • Volatile data: Data that is invisible and not on the drive. For example, computer viruses or apps that don’t leave a trace are volatile. The RAM must be checked to retrieve such data. 
  • Replicant data: These include backup data that gets generated such as cache, cookies, temporary directories, memory etc. 

Digital Evidence in Divorce Cases

Social media platforms have significantly expanded the range of evidence presented in courtrooms. Instead of relying on telephone conversations recorded secretly, emails and text messages are now being used extensively. Pictures and information posted on platforms like Facebook offer more convenient and cost-effective evidence. Imagine the money saved in hiring a detective to do all this investigative work! 

Likewise, finance-related tweets on Twitter can reveal undisclosed wealth better than traditional bank records. LinkedIn profiles can provide evidence of employment or employability, countering false claims. 

Be it photos/reels on Instagram, videos on YouTube, or disclosures on MySpace, they can all be used to demonstrate the opposite party’s actions and credibility. Not only their posts but those of their friends or relatives can also be used as evidence, thus opening up a wide array of possibilities. 

A study reports -“Using [social networking services] is negatively correlated with marriage quality and happiness, and positively correlated with experiencing a troubled relationship and thinking about divorce.”

Here are some statistics to corroborate the above point:

  • As many as 66% of divorce cases use Facebook as primary evidence
  • Nearly a quarter (1/3rd) of all divorce case actions are a result of online affairs

That said, let’s discuss how social media can impact divorce proceedings:

  • Evidence of behavior: Social media posts, comments, photos, and videos can reveal a person’s activities, behavior, and lifestyle choices. Seemingly innocent posts such as check ins, partner pictures etc., have also come under the scanner during divorce proceedings. One can also go through chat history or communication records to demonstrate instances of abuse, spouse’s questionable character, or emphasize any wrongful actions. This evidence can be used to support claims regarding infidelity, substance abuse, and irresponsible behavior. 
  • Financial disclosures: Social media posts may inadvertently reveal financial information that could be relevant to divorce proceedings. Expensive purchases, luxurious vacations, or evidence of undisclosed assets can all be discovered through social media. This may impact division of assets or spouse support. 
  • Credibility: Social media posts can be used to challenge a party’s credibility and credibility of their claims. Inconsistencies can become apparent which will in turn impact the person’s case. 
  • Child custody disputes: Social media activity can play a significant role in child custody cases. For example, posts that depict a parent engaging in irresponsible behavior, neglecting parental responsibilities, or violating court orders can impact child custody decisions, visitation rights, and parenting plans.

Case Studies

Let’s look at some real-world case studies to understand how social media is impacting divorce cases big time. 

Case 1: During her divorce custody proceedings, a mother denied that she was affiliated to a gang. However, her Facebook posts showed otherwise; there were multiple pictures of her with the gang members (who had clear gang tattoos). She also had uploaded a photo of her child with the same tattoo on Facebook, contrary to her claims. 

Case 2: During court proceedings, a husband claimed that he had insufficient income to support a girlfriend as alleged by the spouse. However, this was shown to be false as the husband’s Facebook account clearly demonstrated his relationship with his girlfriend, through a series of pictures including their luxury vacations.

Case 3: To receive spousal financial support, a wife claimed that she was not employable and that she did not have sufficient work experience. Through her LinkedIn account, the claims were found to be false- she had a long history of working as an accountant/bookkeeper. 

Case 4: In a child custody battle, the court awarded joint custody with the father as the primary parent. This was because of the mother’s live-in boyfriend whose extreme bad behavior was demonstrated through Facebook posts and pictures. 

How to Manage Digital Evidence?

Managing digital evidence effectively is crucial to maintain its integrity, reliability, and admissibility in legal proceedings. 

Broadly, it involves the following actions:

  • Collecting
  • Acquiring
  • Preserving
  • Analyzing and reporting

Follow these key steps when managing digital evidence:

  • Collect, identify and document: Clearly identify and document the digital evidence you have collected or intend to collect. Record details such as the date, time, location, source, and description of the evidence. Questions that should be asked are “Who, What, When, Where and How.” The answers will help guide the case. Document any actions taken on the evidence, such as analysis, examination, or conversion to different formats. Make annotations to explain any changes made, ensuring transparency and maintaining an audit trail.
  • Acquire: Different methods may be required to acquire digital evidence. For example, obtaining evidence from computer hardware is different from acquiring evidence from smartphones or mobile phones. Use specialized forensic tools and software to acquire, analyze, and interpret digital evidence. 
  • These tools help in extracting and preserving data while maintaining the integrity of the evidence. For example, consider using The US National Institute of Standards and Technology’s extensive database on forensic tools. 
  • Preserve the original: It is essential to preserve the original state of the digital evidence to maintain its integrity. Make sure to create a forensic copy of the original evidence and work with the copy, keeping the original in a secure, controlled environment. Maintain a detailed chain of custody log, documenting who has had access to the evidence, when, and for what purpose. This log establishes a clear record of the evidence’s handling and ensures accountability.
  • Preserve metadata: Preserve and document any relevant metadata associated with the digital evidence. This includes timestamps, file properties, geolocation data, or other metadata that can provide context or support the authenticity of the evidence.
  • Store securely: Store digital evidence in a secure and controlled environment, ensuring protection against unauthorized access, tampering, loss, or corruption. Consider using encrypted storage devices or systems with restricted access.
  • Backup: Implement a robust backup strategy to prevent loss or corruption of digital evidence. Maintain redundant copies in different locations or storage media to mitigate the risk of data loss.
  • Analyze, report: Analyze and interpret any digital evidence, then report the findings. During analysis, reconstruction of happenings is done after evidence is gathered. Different analysis methods are used for different evidence, such as time-frame analysis, ownership analysis, application/file analysis, and hidden data analysis. Results of these analyses are generated as precise reports along with supporting images or data. 
  • Comply with legal requirements: Familiarize yourself with the legal requirements and procedures related to digital evidence in your jurisdiction. Adhere to the applicable laws, rules of evidence, and guidelines to ensure the admissibility of the evidence in court.
  • Consult experts: If you lack expertise in handling digital evidence, consider consulting a digital forensics expert or seeking guidance from relevant professionals to ensure proper management and interpretation of the evidence.

Remember, it is crucial to consult legal professionals or digital forensics experts to ensure proper management of digital evidence according to the specific legal and regulatory requirements in your jurisdiction.

How Should You Handle Social Media During Divorce?

During divorce proceedings, individuals must be cautious about their social media usage. Taking steps such as setting privacy, not sharing any details, and avoiding negative or provocative content can mitigate untoward consequences of social media in divorce cases.

Remember, each party involved in the divorce is equally capable of collecting information from social media, text messages, or emails. 

Seeking guidance from a family law attorney who’s an expert in handling Social Media Evidence in California Divorce Proceedings is highly recommended. They can offer valuable advice on navigating social media during divorce, while providing advice on the proper use of social media evidence to support one’s case.