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Published July 25, 2013, 10:00 PM

Post carefully: Online information often used in divorce proceedings

FARGO - Michael Gjesdahl’s advice during divorce proceedings reads much like a Miranda warning. “Anything you post online may be used against you in a court of law.”

By: Meredith Holt, INFORUM

FARGO - Michael Gjesdahl’s advice during divorce proceedings reads much like a Miranda warning.

“Anything you post online may be used against you in a court of law.”

It’s standard advice regarding employment, but in the past few years, local lawyers have been seeing more and more “harvesting” of spouses’ social networking sites during divorce proceedings.

The Fargo-based family law attorney has seen it all – drinking photos, pictures with the new squeeze, tweets from Vegas.

“You’d think people would be more careful once the spotlight of an open divorce file is on them,” he says. But sometimes they’re not.

And unfriending your soon-to-be ex doesn’t keep your drinking, dating, spending and traveling habits from them.

“People are harvesting all of the electronic, digital data that they can muster. It’s just today’s version of what people have always done,” says Gjesdahl, of Gjesdahl Law.

Although North Dakota and Minnesota are considered “no-fault divorce” states, online activity can be used to damage credibility or to affect a custody battle if children are involved.

Say dad’s having an affair with a woman with three prior DUI convictions. He denies it, but his incriminating date-night photos are discovered on Instagram. An argument could be made that she shouldn’t be around the kids.

“It sort of comes in on collateral issues like that,” Gjesdahl says.

The divorce may not be over with the first proceeding. A parent with young children may want to start a change of custody a few years down the line.

And guess what, the same rules apply. “Post-judgment motions come in with the same kinds of information,” he says.

Maureen Holman of Serkland Law Firm says it’s become quite common for Facebook posts to come up during hearings or trials. Even if it’s not formally admitted into the record, online information is often shared between lawyers.

The Fargo-based family law attorney tells her clients to be careful about what they post as well as to keep an eye on what their spouses are posting.

“It does provide a source of information, and it’s usually more accurate than what they’re telling you otherwise,” she says.

For example, a case in which someone who’s been diagnosed as an alcoholic says under oath, “I’m not drinking, and I’m attending AA meetings,” then party pictures surface with beer cans held high.

“It’s not just the drinking behavior, but the lying behavior,” Gjesdahl says.

Or there’s the husband who shared a photo of a shiny new boat he bought but thought he’d successfully kept hidden from the court. Or the wife who “checked in” on a vacation with the kids her spouse didn’t approve of.

“It just comes up in funny ways,” he says.

Holman says clients should also refrain from talking badly about their spouses online, especially if they have children who might see the comments.

“It can be very devastating sometimes,” she says.

Nor should they disclose details of the divorce on their Web pages.

“It’s an attorney-client privilege, and everybody’s going to see it,” she says.

She says it’s younger couples who’re more likely to make these mistakes.

“First of all, they tend to use social media more, and they’re used to putting everything on there that they’re thinking 24/7,” she says.

Despite all the reasons irresponsible Facebooking can be damaging during a divorce, lawyers have to stop short of advising their clients to delete anything.

As long as you can prove that you have an accurate depiction of what’s online, it can be used as evidence, and they can’t tell them to scrub it.

“If you tell a client, ‘That’s going to come back to bite you in the butt,’ I don’t think you need to say the next sentence,” Gjesdahl says.

Privacy controls, unfriending or blocking might not be effective, either. Mutual friends may be lending a hand, quietly gathering and sharing information.

“You should just assume that whatever you put up is going to land in their laps and will be brought to their attorney. So be smart,” he says.

The better approach, Holman says, is to keep your page clean and only post what you’re proud of.

“Social media is not the place to be airing your dirty linen,” she says.


Readers can reach Forum reporter Meredith Holt at (701) 241-5590

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