Since the dawn of social media, divorce lawyers have wielded ill-advised social media posts as weapons in divorce proceedings. If you share thoughts, comments, posts, videos, or pictures about your life, your marriage, and your spouse on social media while you are going through a divorce, you are playing with fire. What you post on Facebook, Twitter, Instagram, or TikTok – even what your friends may post about you – can and will be used against you in your divorce proceedings.
When you post on social media, you are telling a story. While that story may sometimes be about what you had for lunch or your take on a current event, some posts and updates reveal where you were, what you were doing, who you were with, and maybe even your some not so kind words or thoughts about your spouse! This is the kind of information that private investigators hired by divorce lawyers used to spend lots of time and money to uncover. Now, your spouse and their attorney can learn damaging facts about you with the click of a mouse.
Depending on the story told by your social media activity, your online life (which may not be anywhere close to your real life) could include bombshells that can be used to make claims or prove infidelity; luxurious trips and expensive purchases that contradict your claims regarding available assets or your financial condition; and comments, videos, or photos that may cast serious doubt on your fitness as a parent.
Nothing Is Private on Social Media and Everything Will Come to Light
Over 80 percent of divorce lawyers surveyed by the American Academy of Matrimonial Lawyers reported using or exploring the use of social media as evidence in divorce cases. Several years ago, NBC News also surveyed numerous divorce and family law attorneys and asked them for examples of how they or opposing counsel have deployed social media in their cases:
- While seeking primary custody of his children, a husband went on Match.com and declared himself to be single and childless.
- A husband’s denial that he had anger management issues was seriously undermined by his Facebook profile in which he promised, “If you have the balls to get in my face, I’ll kick your ass into submission.”
- A mother testified under oath that she did not smoke marijuana, an assertion seemingly contradicted by a recent Facebook picture of her partying and, in fact, smoking pot.
- A husband seeking spousal maintenance claims he is out-of-work, but on social media boasts about his fantastic new job.
Most people who regularly use social media have posted something that we wish we had not at some point. Other people may post ill-advised items believing that their “privacy” settings will keep their posts between their online “friends” only.
Several courts have held that social media posts are not private, even when users adjust their settings to shield their posts from public view. In some cases, judges have ordered a party to turn over social media passwords so opposing counsel could gain access to the information, posts, and photos found there. Even without subpoenas or court orders, all it takes is one person sharing one of your unfortunate posts with your spouse, their attorney, or the world outside your privacy settings for it to become evidence in your divorce case.
If posting on social media is part of your lifestyle, you should consider limiting your activity or stopping it altogether while your divorce is pending. If you must post a comment, picture, or video, you should consider how it will look to a judge who needs to make critical decisions that will affect your rights, relationships, and finances. A thought or image you would not want your spouse or a judge to see is one you should probably keep to yourself.