In November 2011 a Connecticut Judge made national news when he ordered a divorcing couple to exchange their passwords for Facebook and dating websites. More than a year has passed since this made news and it appears that no similar cases have been reported. Nevertheless, the issue has not gone away. Facebook and other social media are becoming everyday elements in divorces.
In my first fourteen years of practicing matrimonial law I saw but a few cases where social media played any part in a divorce. Now in the past three years I have seen social media become a major issue in many cases.
In 2007, I had a divorce case in which my client’s husband had met a woman on AOL chat and was moving to Indiana to be with her. Our trial judge said to me and the husband’s attorney that she thought that Internet soon would replace alcohol as the number one home wrecker. I thought that she was nuts. But now, I know that she was right. This is not because alcohol has lost its punch. This is because the Internet, social media in particular, leave a trail of evidence and they are even more accessible than alcohol.
The exchange of passwords as ordered by the Connecticut Judge seems to exceed New York’s disclosure laws. I have no idea if it was within the laws of Connecticut. But in New York practice we ordinarily do not compel the exchange of passwords.
A password allows a party to access and control an account. This far exceeds the disclosure required by New York’s CPLR or the Rules of Court, which requires that “there shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof”. Inasmuch as a party’s Facebook account may be “material and necessary in the prosecution or defense of an action” this disclosure should be obtainable by receiving a hard copy printout of the other party’s Facebook wall from the other party.
Providing hard copies is what is done with emails. Demand is made for any and all emails fitting a certain relevant criteria for a relevant period of time. The other party then has an obligation to disclose any emails that are covered by the demand.
The problem is that this lends itself to someone deleting things that they do not want to disclose. So I suggest that if you want to get at the other party’s Facebook you friend them – as ironic as that may seem – or have a mutual “friend” monitor the other party’s posts. This was the subject of my earlier post “Facebook as a Source of Information”.
In any event, the best advice I can offer is do not post anything on Facebook or other social media that you would not want to have to explain in court. This is an ever-changing area of law and you should presume anything you post can and will be used against you in a court of law.