Facebook and Divorce

I appeared on Action 4 News this week to comment on the use of Facebook postings in legal cases, particularly divorce.

Here is the story and the video:

Action 4 News Story

Commenting on some pictures while on Facebook can land you in court

Be careful with what you post in Facebook because it may be held against you in court.

Attorneys can now use Facebook posts, pictures and comments as evidence.

“It is a very effective tool for a skilled divorce attorney to use Facebook in a way to show that there might be foul play in divorce,” Ricardo Barrera, attorney, said. “That there might be some neglect towards children or somebody not acting to the best interest of their child.”

Last year in Cameron County 1,433 divorces were granted.

Harlingen attorney Ricardo Barrera tells Action 4 News, half of those cases involve couples with children.

Barrera says over the last 2 years, more couples are using Facebook to prove their cases.

“There could be evidence of adultery, criminality, all kinds of things that can lead a jury or judge to believe there is foul play on divorce,” Barrera said.

Barrera said he’s used Facebook as evidence in over a dozen cases.

He said that it’s not only those getting divorced that must testify, but also those who like or comment on your posts or pictures.

“People can be made to testify what is in the picture or ever having seen the picture.” Barrera said.

If you say no, you could get subpoenaed.

“My advice is watch what you post, make sure that you understand when you put something out there, that’s public knowledge and can be used against you in court.”

How do Courts Really Divide Property in a Divorce?

Under Texas Law, the Courts look to accomplish a “just and right division” of the community property. Community property is property that was acquired during the marriage, that was not inherited or gifted. However, any property acquired during the marriage is presumed to be community property by the Court unless the opposing party shows that it is not. Community property is not just your house, land, and cash, but it also includes debts that were acquired during the marriage, retirement benefits, and in some cases, other benefits depending on what they are.

Sometimes before the marriage began, one party may have invested money they earned before the marriage into property that was acquired during the marriage. If that is the case, a competent attorney will gather evidence of this transaction in a form that the Court will accept in order to make a claim for reimbursement out of the community funds.

The simplest way to explain how things go, in a divorce as to the division of community property, is that it hinges on whether a “no fault” or “fault” based divorce exists. If a claim is made with proper evidence to back it up that except for some act of adultery, cruelty, violence, fraud, etc. the marriage would have continued, then the court will look to giving more than just a split down the middle to one or either party. This is where you get the concept of “he or she got everything” in the clearest example of fault based divorce.

In the end, there are many factors taken into account in dividing marital property. Know your rights and know what questions your attorney should ask because you may not even know that you are entitled to more than you originally thought.

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