How Social Media Can Undermine your Divorce Action

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 to a Divorce or other Family Law action?

Most of us with a smartphone spend a lot of time tapped into some form of social media. Popular posts include sharing a fun photo of a family outing, a ‘check in’ at an out of town event or vacation spot, a statement a rant about an unfaithful spouse or a request for advice on a specified topic. In divorce cases, all these posts can end up in a court of law — used as evidence against a party, thereby affecting spousal support, child support, child custody and/or property division.

How is social media used in Divorce?

Every week we are presented with social media evidence that is relevant to one of our Family Law cases. 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 s/he is ‘innocent’ of the claimed wrong doing. 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 s/he has funds to pay additional support or lawyer fees. Sharing of photos at a ‘girls night out’ (drinking a beer 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/ go out with friends instead of exercise 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 his/her impulses. When court’s 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, Judge’s and/or mandatory custody mediators may worry that the contents of the post could get back to the child(ren) or that the spouse is too angry or emotional and may disparage the other parent to or in front of the kids.

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 and/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 his/her friends and family. There is always someone who has access to your posts who will inevitably share with your estranged spouse. Further, if a mutual ‘friend’ posts a photo ‘tagging’ you — expect that your spouse or someone close to her/him will be able to see it and is taking notes or printing findings.

One thing is for sure. If you’re going through a divorce, you can be certain your spouse and lawyer 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. Your divorce won’t last forever – but 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 and/or her/his 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 as we divorce lawyers know, can help to keep your pocket book and peace of mind – intact!)

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