Providing Personal Service For Clients Throughout Indiana

Digital Communications in a Pending Divorce: Things to Look For and Things to Look Out For

On Behalf of | Sep 10, 2021 | Family Law

Generally, seeing someone through a divorce means seeing them at their worst. Divorcing spouses are angry, hurt, and frustrated, and these emotions are often reflected in texts, emails, and social media posts. It is important for people to know that the things you say in writing can be used as evidence against you. In fact, texts and social media posts are often the BEST evidence against an opposing party.

Here are a few ways these items can be used as evidence in a divorce:

  1. Evidence Supporting Physical Custody

In Indiana, decisions regarding who has physical custody (where the kids are staying and when) and who has legal custody (the right and ability to make decisions regarding the kids) is all about what is best for the kids, even if it feels unfair for the parents.

Indiana Code 31-17-2-8 provides the factors courts consider when awarding physical custody. Social media posts and text messages can be used as evidence in the following ways when deciding custody of children:

  1. Demonstrating questionable judgment and activity

Courts consider the physical and mental health of parents when determining custody, which includes whether a parent is drinking too much, possibly doing drugs, participating in risky behavior, or even showing signs of mental illness.

Drunken text messages to your ex, social media posts with alcohol in photos, or even a series of posts about your recent base-jumping habit could all be used against you to question your ability to parent.

Again, the court is looking to see who is going to be the most stable and predictable adult for the children, not what is fair to the adults.

  1. “Wait, how do I parent again??”

Another factor courts consider when deciding primary physical custody is which parent has been the “de facto” custodial parent. Courts heavily consider who the de facto custodial parent is, especially when the children are young children and need more care and oversight.

If you are a parent seeking custody, digital messages to your former spouse or on social media posts that indicate you don’t know how to “parent” your children could be used against you. This shouldn’t discourage you from checking in with your former spouse on whether routines have changed for your child, but there is a difference between, “Are you still using the same shampoo and conditioner for our daughter’s hair” and “How do I wash our daughter’s hair?”

  1. Supporting a claim for coercion

Once a child reaches age 14, the court will give more weight to their desires regarding physical custody. However, courts do not look favorably on parents that attempt to entice their kids into requesting a custody change. The following could be used as evidence:

1.     Social media posts by a parent that show all the things the parent buys their child;

2.     Text messages to the child promising gifts if they move to the parent’s house; and

3.     Text messages promising lenient parenting if they move to the parent’s house.

  1. Domestic Violence and location tracking.

Domestic violence is another factor courts consider when awarding custody. Tracking your ex’s whereabouts is very problematic because tracking location implies domestic violence. Generally, if DV could be an issue in your case, don’t track your ex’s location because the fact that you tracked your ex’s movements is likely a way bigger deal to the court than pretty much anywhere your ex could be going.

Lots of smart devices and apps have location tracking in them, and lots of married couples share accounts or passwords with each other. Inadvertently seeing where your spouse is? Not your fault. Realizing your spouse has not changed their app password and using it to see where they are going? Your fault.

  1. Evidence supporting legal custody.

Even if one party has primary physical custody, courts prefer to award both parents with joint legal custody, which is the ability to make decisions for the kids about things like medical care or education.

Courts will not award joint legal custody, however, if the parents are not able to communicate with each other without it resulting in conflict. Therefore, digital messages where you and your spouse are calling each other names or angry social media posts can be used as evidence to show you should not share legal custody.

If this happens, the parent with primary physical custody is almost always awarded sole legal custody. Again, courts are not concerned with what is fair for the adults or who-started-it; Courts are concerned that every time the parents try to have a conversation, conflict ensues, and the kids are probably exposed to that conflict.

  1. Remember — your child’s social media and texts can also be used as evidence.

While this post is largely directed at parents involved in a dissolution, your children’s social media could also be used for similar evidence.

Courts are likely to weigh the posts differently — an angsty middle schooler is likely to post frustrations on social media, so the content may not be as significant. Parents, however, are expected to exhibit a much higher standard of conduct.

  1. Divorces without Children

Getting divorced and don’t have custody concerns? Social media can still be used against you. In a divorce without children, the courts are still splitting marital assets.

Another attorney recently said something very insightful: Once you file for divorce, all your money and assets no longer belong to you or your spouse- they belong to the court. The court then gets to divide all those assets based on Indiana law and statute.

Indiana is a rare case because absent a prenuptial agreement, all assets and liabilities are assumed to be shared 50-50 (with very few exceptions). Courts can consider facts that allow them to deviate in favor of one party or another in that split.

One such factor is the “economic circumstances of the parties.”

Let’s say you and your spouse file for dissolution, and you immediately buy yourself a new car, go with your buddies to Las Vegas for a much-needed break, and start flourishing a new fling with extravagant gifts. If you post about these things online, those posts could be used as evidence to show that you are particularly wealthy, perhaps even hiding money in the divorce accounting.

Alternatively, it can be used as evidence of another deviation factor: dissipation of marital assets. Dissipation is argued if one spouse has spent a lot of marital money on an addiction, such as gambling, or to facilitate an affair.