Many people mistakenly assume that so-called ‘private’ content on social media or messaging apps is not admissible evidence in court. The purpose of this article is to dissuade any reader from believing this false notion. In addition, we will provide strategies for using social media to your advantage during a divorce case.
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Once your divorce case or your divorce negotiations are underway, you can expect to have your spouse and your spouse’s lawyer scrutinizing your behavior and character. Your online presence is one of the easiest ways for them to gain evidence that may affect the outcome of your divorce. We’ve compiled some basic strategies that may save you heartache and money as you proceed.
- DON’T delete your accounts, even if they contain potentially damaging content. Don’t change or edit past content, even if that content contains potentially damaging content.
- DO re-set your privacy settings.
Deleting your account or editing past content is one of the quickest, most effective ways to look guilty and arouse scrutiny. Besides, all that stuff you deleted isn’t gone forever and could easily be retrieved if the court suspects that you tampered with evidence. Even ‘permanently’ deleted content can be retrieved if the court deems the material of interest.
On the other hand, this is the perfect time to re-set your privacy settings. Change your passwords if your spouse knows them. Make yourself ‘private’ on social media settings. Go through your list of ‘friends’ and hide your activity from people with whom you aren’t personally close.
Once you are locked into divorce proceedings, your spouse will likely re-set her or his privacy settings and block you from accessing content that might be incriminating. If you are considering divorce, and if you still have access to your spouse’s social media sites, you can start a file of social media posts, texts, and messages that might help your negotiations.
Don’t worry if you missed your chance to collect evidence, however. If you have been blocked from your spouse’s accounts, there are ways that you and your attorney may formally request access to these records.
Here are some rules to guide your decisions regarding social media if you are going through a divorce (or contemplating one).
- DON’T post potentially embarrassing or incriminating photos or content of yourself.
○ DON’T post photos of yourself that involve alcohol or other oft-abused substances.
○ DON’T post photos of yourself dating or seeing another person.
○ DON’T post anything that ties you to hardcore pornography, illegal activity, misuse of guns, gambling, or anything that may appear unseemly in the public eye. - DO ask your friends not to post potentially embarrassing or incriminating photos or content online. Ask them to remove potentially incriminating content if they do.
Many divorce negotiations center around financial assets and the custody of children. Hopefully, these negotiations are amicable for you, but if they aren’t, social media may make your case stronger. If there are pictures of your spouse using substances (including alcohol), acting irresponsibly, ranting angrily, or dating other people, these may all make your case stronger.
Social media posts have been used to disprove one party’s depiction of financial need.
For example, legal records in a personal injury lawsuit (Largent v. Reed) show the plaintiff claiming severe pain after the injury in question. The defendants used post-accident Facebook photos to successfully argue the ‘severe pain’ wasn’t preventing the plaintiff from engaging in daily activities, attending the gym, and enjoying normal functioning, in contradiction to the plaintiff’s claims. The court ordered the plaintiff to provide her Facebook login information for further inspection in connection with the case.
- DON’T post rants.
- DO collect evidence of rants or abusive exchanges if your spouse is the one ranting or abusing. Facebook messenger conversation, for example, is admissible evidence.
The time leading up to a divorce and during a divorce is an especially vulnerable time. You may feel needier or angrier than you usually do. Some people disappear or dive deep during difficult times, but other people develop a devil-may-care attitude, which may result in the disclosure of too much personal information on social media.
Never assume that anything you share online (publicly or privately, social media apps or email) is fully confidential. Neither your incognito settings, your company’s encryption software, your passwords, nor your privacy settings are going to be able to fully protect the privacy of your keystrokes or your online history.
Take your valid emotional needs to mental health professionals or to face-to-face meetings with your friends, family, divorce lawyer, and other people in your support network. At least until your divorce is finalized, don’t take your emotional needs or your strong feelings (no matter how valid) to social media.
- DO proactively tell your divorce attorney about incriminating social media content that may strengthen your negotiating position
Be forthcoming with your attorney if you believe your spouse’s social media content, photos, texts, messages, or email could provide important information for your divorce proceedings. Parties involved in a trial can be served with a disclosure notice that requires them to reveal passwords with failure to comply leading to further penalties.
- DON’T attempt to ‘friend’ your lawyer, your judge, or anyone else involved professionally in your case. In addition, don’t use these legal professionals as mental health counselors.
- DO be friendly in a professional manner. Be gracious. Say ‘good morning,’ ‘thank you’ and ‘please.’ Return email within 24 hours. Be punctual to meetings.
It can be excruciating to have your private life held up for inspection and criticism in court. Remaining professional even when you feel that you are being exposed or attacked may be one of the most challenging things you’ve ever done. An experienced divorce attorney will help prepare you for difficult meetings and conversations and point you to other resources in your community.