Social Media and Divorce: Posting Dos and Don'ts

Think twice before you share ... and you might want to look over your history of social media, too. More than ever, litigants and lawyers are using social media to collect information that they can use as 'evidence' in a family law case. Facebook, LinkedIn, Twitter, Instagram, and various dating websites are all popular places to look when in the midst of a messy divorce.

Why are social media posts important in a divorce or other family law action?

Many of us spend a lot of time engaged in some form of social media. Popular actions include sharing a fun photo of a family outing, 'checking in' at an event or interesting location, posting a personal rant, sharing a funny meme, or asking for advice on a specific topic. In divorce cases (and any lawsuit), all these posts and actions can end up in a court of law and be used as evidence against a party, thereby affecting spousal or child support, parental rights, custody, or property division.

How is social media used in divorce?

It's common for clients to present social media evidence to their lawyers. Sometimes it's to try and demonstrate their incompetence as a parent or to prove a point about their financial picture. While many of the posts are not truly representative of the actual circumstances, once presented the burden generally shifts to the 'offending' spouse to prove that they are 'innocent' of the claimed wrongdoing.

Posts as benign as celebrating a promotion or buying a new vehicle can be used against a spouse who claims to not have enough money to meet daily expenses or used as evidence that they have funds to pay additional support or lawyer fees. Sharing photos on a night out (such as drinking with a friend) can be used by a spouse in a child custody action to help 'prove' substance abuse or argue that a spouse chose to party or go out with friends instead of exercising parenting time.

Vacation posts could be interpreted as having a surplus of money or choosing "fun" over kids. Even a selfie posted at home can be used against a spouse who claims to live in a different city. Location or "check-in" posts are often used to undermine a spouse's credibility.

Posts that discuss your state of mind can also be troubling. We've seen divorcing spouses use these posts to try and prove that their ex is unfit or unwell and therefore not safe to parent. We have seen posts where a spouse goes on a rant about their ex and the court expresses concerns about that spouse's judgment or inability to control their impulses.

When courts are making child custody orders one of the things they are looking at is whether or not the parties respect each other enough to co-parent responsibly. If a spouse uses social media to disparage the other, the judge or mandatory custody mediators may worry that the contents of the post could get back to the children or that the spouse is too angry or emotional and may disparage the other parent to or in front of the kids.

Tip: Refrain from using social media (for now)

Warning: Divorcing parties may be ordered to provide existing and deleted(!) social media and networking data. Yes, you heard that right. Case law now provides that in certain circumstances a spouse may have to turn over passwords, usernames, or login information to their past and present social networking sites.

Even if you have not been compelled to provide this data, do not expect that your posts are private even if you have 'unfriended' your spouse and their friends and family. Even if you feel that your close friends are trustworthy. there is almost always someone who has access to your posts who could share with your estranged spouse.

Further, if a mutual friend posts a photo and tags you, you can expect that your spouse or someone close to them will be able to see it and could take notes or print findings ("receipts").

One thing is for sure: If you're going through a divorce, you can be certain your spouse and lawyer (if they hired one) are combing through your online life. Protect yourself and the integrity of your case by staying away from social media accounts or exercising serious discretion and thinking through each post before it becomes public.

For now, you are under the microscope of the court (even if you are trying hard to stay away from litigation). Even if your posts are relatively harmless, they may still be provoking or upsetting to your ex or their friends and family. To the extent you can limit the animosity and ill will between you and your spouse, you will likely have a much smoother uncoupling (which can help to keep your pocketbook and peace of mind intact!)

Founder, CEO & Certified Family Law Specialist
Mediation, Divorce Strategy, Divorce Insights, Legal Insights
After over a decade of experience as a Certified Family Law Specialist, Mediator and law firm owner, Erin was fed up with the inefficient and adversarial “divorce corp” industry and set out to transform how consumers navigate divorce - starting with the legal process. By automating the court bureaucracy and integrating expert support along the way, Hello Divorce levels the playing field between spouses so that they can sort things out fairly and avoid missteps. Her access to justice work has been recognized by the legal industry and beyond, with awards and recognition from the likes of Women Founders Network, TechCrunch, Vice, Forbes, American Bar Association and the Pro Bono Leadership award from Congresswoman Barbara Lee. Erin lives in California with her husband and two children, and is famously terrible at board games.