Can Facebook and Other Social Media Be Used Against Me in My Divorce/Custody Case?

Can Facebook and Other Social Media Be Used Against Me in My Divorce/Custody Case?

The short answer is YES!  I love using social media.  I have links to all of my profiles listed on my business cards and I often check Facebook or Twitter before I even roll out of bed.  I enjoy posting snarky and smart alec comments or jokes and embarrassing pictures of me and my family.  It’s fun.  However, during a divorce or child custody case, it is probably a good idea for you to back off of social media for a number of reasons.

The first is that it is probably not going to do anything to encourage settlement of your case.  In fact, it will probably just add fuel to your ex’s anger.  Whether it is veiled statements you are making about him/her, bragging about how much better your life is without the ex, or even posts that you feel may otherwise be harmless; you never know how someone else is going to take something you have posted.

The judge will see your posts.  I do not care what kind of Fort Knox level privacy settings you engaged on your favorite social media site.  It will be seen by your ex or a friend of a friend of the ex and it will get out.  It will then be seen by the judge and it will be considered as part of your case.  I once had a case where I represented a mom and I advised her to back off of her Facebook usage for the duration of the case.  She was resistant because she had all of the privacy settings engaged and besides she “only uses it to share pictures of her kids with her sister in California.”  We get to court and apparently one of those pictures she liked to share with her sister was of her dancing on a pool table while holding a fifth of vodka in her hand while dancing with another woman who appeared to be slapping her on the rear.  At least, that was the picture that was presented by her ex in court.

Do not delete your posts if you already have an account.  If you do, you could be accused of destruction of evidence.  This can have a number of ramifications including that the court will assume there is something in the files you deleted that was detrimental to your case and will, therefore, make a negative inference that you are hiding something.  This is totally legal under the rules of evidence and very bad for your case.  If your attorney ever advises you to delete your posts, that attorney is violating state ethics rules and probably the law as well.  In recent years, I have heard horror stories of attorneys being sanctioned thousands of dollars and even being suspended from practice for advising clients to delete posts from social media.  Do not do it.

Social media is a lot of fun and a great way to share information with your friends and family.  Unfortunately, during litigation it becomes a gold mine of information and evidence for family law attorneys.  While your case is pending, just back away from it and stay offline for a while.  No one is that interested in what you had for lunch anyway.

Photo courtesy of Jason Howie

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