In short, the answer is yes. Although social media could help a party’s position in litigation, such a benefit does not outweigh the risks of permanent harm it could do to one’s case. This blog post will discuss several reasons why one should avoid the use of social media during a pending divorce or child custody dispute

Should I Stay Off Of Social Media During Litigation?

In recent years, an increasing number of individuals actively participate in social media platforms and other electronic methods of communication. If used mindfully, social media can be a fun and harmless way to share life events and stay connected with friends. But social media, mixed with a pending divorce or custody dispute can be quite the opposite. Going through a divorce or custody dispute is notably an emotional and tumultuous time in one’s life. Continuous, public use of social media can make a soon-to-be-ex-spouse or parenting partner angry and tempted to leverage the posts against the person pwosting. 

  1. A private profile is not so private after all. 

    It is possible to control privacy settings on a social media account in hopes of keeping the information confidential and private. An individual should always be cautious of the possibility of a spouse or parenting partner being able to access account information regardless of the privacy settings. Additionally, it is common for spouses and parenting partners to share mutual friends on social media. If a party chooses to unfollow each other, there are mutual friends who will maintain access to posts. There will always be a way for a spouse or parenting partner to manipulate and retrieve information from your social media accounts — Information they may manipulate and use as evidence to build the case he or she needs.

  2. Social media keeps up with all of the trends, including your spending. 

    In a divorce case, the two most pressing issues are often the division of a couple’s assets and determining the children’s interests. Early on in the divorce proceeding, it is common to have an inventory and appraisement conducted of the couple’s assets and liabilities. A proper valuation of the marital estate will ensure a just and right division of the property to each spouse upon the termination of the marriage.

    A party should be wary of what he or she posts on public social media regarding his or her finances. Posts and photographs of weekend trips, summer vacations, or the purchasing of lavish gifts can be obtained and have a direct effect on the valuation of the marital estate or child support. Additionally, where there is proof of one spouse in a divorce spending excessive amounts of the community property estate, there is a possibility that the other spouse will build a claim for waste of such assets that, by law, belong to her or him as well. Photographs of lavish spending on social media are an easy way for an angry spouse to create leverage against another. It is also easy to misinterpret more innocent posts as more than they are. An inexpensive vacation can be made to look far more lavish on social media; a new vehicle can raise questions of price, an engagement ring may appear more expensive than it is. Social media is often used to show off a little. However, there is a risk that it can cost you far more in legal expenses just explaining the truth than the likes the photo has generated.

  3. A fun, trivial post will be treated as serious in front of the judge. 

    A mindless post on a Facebook wall or a not-so-appropriate Instagram photo are effortlessly obtained and routinely presented to the court in order to establish the proof needed for a parent’s legal argument. A judge or jury would analyze such proof seriously even if a parent meant for the post to be harmless. Where a parent deems it necessary to actively engage on social media during the pendency of his or her litigation, each post should be intentional and calculated to bolster his or her position in the lawsuit. Even when not in litigation, think twice before posting that funny video of the kids singing and dancing in the car when they are not buckled in. Better yet, buckle the kids in and do not film in the car. You would be surprised what can come back to haunt you.

  4. A picture may be worth a thousand words, but it could cost you your children. 

    A heavily litigated and negotiated issue during a divorce or custody dispute is the parent with the right to determine where the children live and who pays child support. When establishing a parenting plan for each family, the court’s responsibility is to act in such a way that serves the child’s best interest.

    For example, the court will analyze any emotional and physical danger of one parent to the child now and in the future when determining the best interest of the child. If a parent has made social media posts of excessive drinking or post suggesting drinking and driving, it is a sure bet that the information will resurface at some point during negotiations and trial regarding the child. A party will undoubtedly use social media publications as evidence that the parent is unfit and unable to serve the child’s best interests. Even benign posts, such as supporting a friend’s bar, may be coupled with other posts to paint a picture that looks far worse than it is.

  5. Ask and you shall receive any and all social media information. 

    In most family law cases, the parties will ask each other and be obligated to respond to discovery questions. This is the discovery phase of the case, or in other words, the “information gathering” phase. This is a chance for each party to obtain an extensive amount of information needed to help build his or her case against the other. There are few limitations as to what a party is able to discover in a divorce proceeding (it is slightly more restricted in child custody litigation), so long as the information is relevant to the legal issues and the party is not otherwise privileged from producing the information. This includes information from a party’s social media outlets, both public and private. Generally, all posts, photographs and private messages relevant to any legal issues in the pending case are discoverable.

  6. What happens on social media, stays on social media. 

    Most cases will involve mutual injunctions being put in place at some point during your litigation. For the most part, it starts early on, sometimes when you begin the lawsuit. Those injunctions almost always include a prohibition from deleting or destroying electronic data from social media sites. In relation to the discovery process, once a party has been requested to produce specific information, that information cannot be legally be deleted. Generally, if one party is in possession of the requested information and provided the proper procedure on how to obtain and secure that information, the party is obligated to produce it to the opposing party. It is important to keep track of what is posted on social media, so an opposing party does not face the dilemma of having to hand over potentially damaging documents.

  7. Social media can be manipulated to force your hand in settlement negotiations.

    Information that has been discovered by the opposing party, even if not legally admissible in court, can be used against the other party to force a better result during settlement negotiations. The posts may not be admissible for certain reasons, but they may be able to justify the appointment of an amicus attorney, drug testing, or a custody evaluation. Messages or photos can be used to alter negotiation arrangements. Social media information in combination with other evidence, can be used to affect possession and access to the children. For example, a parent’s suggested abuse of drugs or alcohol can be used to require the parent to complete parenting courses or treatment as a condition to having access to the children.

  8. Private messages that become evidence of extramarital relationships are suddenly not-so-romantic. 

    Where there is suspicion of an extramarital affair, social media is a sure way to validate it. If a spouse has accessed or used social media in furtherance of an extramarital affair, this activity is likely discoverable by the opposing party. Photos and private messages will help the opposing party illustrate the existence of an affair. Evidence of extramarital affairs can prove fault in the breakup of the marriage, which can affect property division in favor of the innocent spouse.

  9. Partying, drinking, or drug usage will lead to a huge legal hangover. 

    A party should be cautious of posting about drug and alcohol consumption or excessive partying. This is especially true when issues regarding the children are involved. The opposing party and court will want to know of a party’s history of drug and alcohol usage, and the more recent usage will be most relevant in determining aspects of the case. Posting these types of moments allows the opposing party to keep an ongoing record of questionable behaviors.

  10. Anything you post, can and will be held against you. 

    All in all, Facebook, Twitter and Instagram are never the answer and should not be used as an emotional outlet during a pending divorce. It is in the best interest of the party and his or her family to abstain from the use of social media during the pending divorce. The benefits of carefree social media use are far outweighed by the dangers of having a party’s internet activity used to build a case against him or her. If a party is ever unsure about the use of social media during a pending litigation, err on the side of caution and put the phone or laptop down. An individual should always consult with his or her divorce attorney in determining the role social media will play in his or her pending litigation.

At Skillern Firm, we are committed and determined to help you throughout your divorce case. Call us to schedule a consultation with one of our lawyers.