Valerie J. Botter

Creative solutions for family transitions.

When Hasty Outbursts Become Exhibits

by Valerie J. Botter

In Massachusetts, private conversations between spouses are subject to a disqualification evidentiary rule. This means that in an affidavit or at trial, a wife cannot testify in court what her husband said to her in private if the husband objects. However the disqualification rule does not apply to documentary evidence, so emails, text messages, Facebook and Instagram posts, and LinkedIn posts can all be submitted as evidence in court.

In 2008, I tried a custody case in which my client’s husband was a bully toward her, although he presented well in court. I attached copies of his emails as exhibits to motions, and they were very effective in obtaining the court orders we requested. At one point he wrote to his wife and said “my lawyer says no more emails to you because Botter will use them in court.” He couldn’t resist after that, however, and I submitted more emails at trial which led to a very good judgment. Years later in 2016, I tried a 4-day high conflict custody removal case, and again, emails told a story that provided important context to the parties’ live testimony. An unusual twist in that case was that the other party unwittingly submitted emails that were helpful to my client’s case!

Blogging has also become increasingly popular. We blog to communicate with the rest of the world as we all spend increasing amounts of time on our computers, smart phones, and tablets instead of socializing at dinner parties, neighborhood block parties, and family outings. We blog to build our businesses and to develop connections. We blog to share ideas that we think will be of interest to others. We blog because we hope that someone will listen. Just remember that what you blog may wind up as courtroom evidence if you and your partner or former partner litigate a family law matter in court.

Separation and divorce can be extremely lonely and isolating. Parents who have never been away from their children can feel lost without them. Partners and spouses who didn’t initiate the separation suddenly find themselves alone, often unexpectedly. It is tempting to blog, to post on Facebook, and to share by email and on social media our feelings of loneliness, anger, and despair.

So think carefully about what you post on social media. And when you compose an email about a potentially charged subject, don’t fill in the “to” line with your recipient’s email address at first. Save the email as a working draft, and before you hit send or post, review to make sure that if what you wrote winds up in Court, it represents your best self. It is surprisingly easy to accidentally send your “working draft.”

September 2020

Email Valerie or call 413-586-8651.