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Simi Sara Show interview with Marian Rosen on Feb 11, 2014


February 11, 2014

Simi            Welcome back.  Well, be careful what you post on Facebook.  How many times have we heard that before?  Yes, but this is a new twist on that warning.  According to a new report from the American Academy of Matrimonial Lawyers, a third of all divorce filings now contain the word “Facebook”.  In other words, what you’re posting could come back to haunt you in your divorce and your child custody situation.  How, you may ask?  Well, let’s find out.  Marian Rosen is an attorney in Houston, Texas and joins us now.  Hi, Marian.  Thank you for being here.

MSR          Hi.  How are you, Simi?  And to the audience, hello.

Simi            Well, Marian, is this a thing that you’re seeing?

MSR          We’re seeing a great deal of it.  It has exponentially exploded as far as being utilized in connection with divorce proceedings and other litigation.

Simi            In what way?  What are people doing?

MSR          Well, people are utilizing the social media to gather information that can be used against a spouse in a divorce proceeding, in a custody proceeding.  Using written information, photographs and other things to be used as evidence or for cross-examination.

Simi            Is it like a person’s behavior?  What they have been doing or is it things that they have said?

MSR          It could be all the foregoing.  Let me just give you a couple of examples.

Simi            Yeah.

MSR          Let’s just say, for example, a husband in a divorce case pleads poverty to the judge, but yet he has posted a photograph on Facebook of this beautiful, new, red convertible that he just bought.  He’s going to have a hard time explaining that to the judge when he pleads poverty and says, “I can’t afford to pay child support for my children.”

Simi            Wow.  Isn’t that kind of like stupid is as stupid does?  There’s a lot of common sense involved here, isn’t there?

MSR          Well, there is, but I think people tend to be social about things and they want to share information with their friends, and they don’t stop to think about how they are damaging themselves because they’re opening themselves up to a litany of problems when they do this.

Simi            Have you seen this happen in your practice?  Have you seen this come up with your clients, as well?

MSR          I have seen it happen and I forewarn my clients that they should have a blackout on social media during the course of a divorce case.  I mean, this is absolutely forbidden as far as my clients are concerned because you don’t want anything to come back to bite them as you are proceeding through your case.

Simi            Right.  I mean, can they take things down?  Should they – I mean, once it’s up there, isn’t it too late?

MSR          Well, the problem is, of course, that once it’s up there, it’s going to be there permanently so you can’t do anything about what has occurred in the past, but you can certainly do something about today and the future.  So, you know, forewarned is forearmed.

Simi            Would you say that this issue kind of spans all age groups or is this something that maybe younger people have to deal with?

MSR          Well, I think that probably you have a younger population that puts more of it out there on Facebook, but nevertheless we’re still seeing a great deal of it where all age groups are concerned.  You know, it might not be what you post on, we’re using Facebook as an example, but it might be a photograph that a well-meaning friend might post.  For example, here are my friends at this party, and here Mother is claiming in a divorce case that she doesn’t smoke or she doesn’t drink, but there she is holding a cigarette and a glass of champagne or something, and it very innocently having been posted by a dear friend of hers.

Simi            So you’re saying that even in child custody situations that your behavior on Facebook could now be used against you?

MSR          Absolutely.  Let’s assume you have a mother who has a child who has asthma or some other breathing problems and she claims she doesn’t smoke, yet here she is in a photograph smoking.  The husband, father of the child might very well use that as evidence to the Court to demonstrate that that’s not a good environment for the child.

Simi            Wow.  Okay.  Are you surprised it’s actually taken this long to become an issue?

MSR          You know, I think people gradually didn’t realize how much of an impact that it would have, but gradually as Facebook has become used by what, a billion people or more around the world that lawyers have found that it’s a very interesting and explosive tool to use in connection with divorce and custody proceedings, as well as other litigation.

Simi            Right.  Is it a tough message to sometimes get through to your clients, Marian?  Do they often not see the connection between the two?

MSR          It’s very difficult.  I think you have to be very strong and firm with your clients about the dangers that they are bringing about if they persist in this behavior.

Simi            Really.  So you have to actually convince them of this?

MSR          Yes, you do.  Yes, you do.  We’re finding, and you quoted the American Academy of Matrimonial Lawyers, that more than eighty per cent of lawyers are seeing and have encountered or used social media in connection with divorce and custody cases.  That’s a huge number.

Simi            That is a huge number.  So essentially anything that you post online could later come back to haunt you, whether it’s a child custody situation or a divorce case.

MSR          Absolutely.  And people should be warned, you know, to, first of all, that they should just blackout social media, that they should be sure that they de-friend people, so to speak, and that they disable anything that might create a problem, that they set up privacy, but the best advice is just don’t use social media.  Just remove yourself completely.

Simi            I bet the problem, though, too is Marian, is that people probably don’t see it happening to them, right?  Like the divorce may surprise them and all of a sudden they find themselves in a fight that they never thought that they were going to be having.

MSR          That’s true.  And as I said before, you can’t do anything about what has happened in the past, but you can be cautious and careful about what you do today and what you do in the future.  And I think that you need to be armed, we, as attorneys, need to be armed for the cross-examination that a client may be confronted with in the course of a trial, to try to prepare them for issues.

Simi            If a client comes to you, then, is going to the social media account of this client and their significant other, is that one of the first things, then, that you would do?

MSR          Absolutely.  First of all, if, in representing a client, I would try to search out as much information about the opposing party so that we could be prepared as much as possible.  And, again, I would ask my client, do you have any information from prior postings, and then use that from the standpoint of an advocate against the other spouse.

Simi            Wow.  Okay.  People better be very, very careful then with what they’re doing.  Marian, thank you for your time.

MSR          You’re welcome and you have a great day.