Share at Your Own Risk: The Danger of Social Media During Divorce

On September 3, 2018

It’s not hard to understand why. Social media users share intimate and revealing details of their lives in countless status updates and photos, including where they were, what they did, who they were with, and their state of mind at the time. These are the kinds of things that used to take private investigators months of shoe leather to find out. Now, of you want to learn about someone, you can learn a great deal just from looking at their social media footprint. If you were a spouse or a divorce lawyer looking for evidence to use against the other spouse on issues such as custody, support, maintenance, or property division, a few mouse clicks and you may have all you need.

What You Post Can and Will Be Used Against You

More than 80 percent of divorce attorneys surveyed reported an explosive increase in the amount of evidence collected from social networking sites in the past few years, according to the American Academy of Matrimonial Lawyers. This evidence can include bombshells such as proof of infidelity, pictures or posts that contradict claims regarding assets or financial condition, and comments or photos that may cast serious doubt on parental fitness.

NBC News surveyed numerous divorce and family law attorneys a few years ago and asked them for examples of the ways in which social media has been used in their cases. These included:

  • A husband going on and declaring his single, childless status while also seeking primary custody of his supposedly nonexistent children.
  • A husband denying that he had anger management issues, a denial that was undermined by his Facebook profile in which he claimed that “If you have the balls to get in my face, I’ll beat you back into submission.”
  • A mother testifies under oath that she does not smoke marijuana, a claim seemingly contradicted by the partying, pot-smoking picture of herself that she posted on Facebook.
  • A spouse seeking alimony claims he is out-of-work, which makes his social media bragging about his awesome new job somewhat problematic.

Privacy Settings Won’t Protect You

These cautionary tales notwithstanding, you may think that you can continue posting anything you want while going through a lengthy divorce process. After all, you’ve set your privacy settings such that only your online friends can see what is up with you; why should you have to shut down your online social life? Good luck with that approach.

Several courts have ruled that social media postings are not private, even when users adjust their privacy settings to shield their posts from public view. Facebook and Twitter’s privacy policies warn users that the purpose of the sites is to share information, and that the public can view the posts on the sites.

Additionally, there have been cases where courts have ordered litigants to turn over social media passwords so that opposing counsel or prosecutors could gain access to the information, posts, and photos found there. Even without subpoenas or court orders, all it takes is one person deciding to share one of your ill-advised posts with your spouse, their attorney or the world outside your privacy settings for it to become evidence in your divorce case.

Post Like EVERYBODY is Watching – Your Spouse, Their Lawyer, The Judge

I would advise anyone going through a divorce to also divorce themselves from social media for a while, refraining from making any posts or comments whatsoever. Even posts that may seem innocuous to you could be used against you. But I also understand that social media is a deeply ingrained part of life for many people, and that completely staying offline may be unrealistic. In that case, focus on limiting your posts as much as possible and avoid any posts that discuss your spouse, your marriage, your case, the judge, your lifestyle, or your feelings about what you are going through. Funny pictures of your cat should still be fine.

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