If you asked a hundred divorce attorneys their best piece of advice about social media and divorce, the majority would probably say something like this: stay off social media for the duration of your divorce or family law matter. If asked to elaborate, many of them would probably counsel to cease posting to your own accounts, or even to deactivate them altogether. Can social media be used as evidence in a divorce?
The answer, unsurprisingly, is yes. Yet many people continue to hand their spouses ammunition to use against them in a divorce trial. Why? And how can you protect your interests if you do decide to use Twitter, Facebook, Instagram, or other social media while your divorce is pending?
During a divorce, you may be emotionally exhausted, and you will need the support of family and friends. In some ways, social media is the perfect solution. Social media does not require the emotional energy that face-to-face social activity does, yet it allows you to easily share how you are feeling, and within minutes to get positive messages from those in your circle.
Of course, there are risks inherent in socializing on the internet, and they can jeopardize your divorce case in a few different ways. Your social media postings (or someone’s posts that involve you) can cast doubts as to your fitness as a parent; they can make it seem as if you have more money than you’re claiming in court documents; and they can, in general, make you look untrustworthy if they conflict with your statements in court or under oath. And if you’re trashing your spouse on social media, that may call into question your judgment, maturity, and ability to coparent
One common misstep on social media during divorce is to post pictures involving drinking or partying. If you are over 21, you are certainly allowed to have a drink when you want to. But if pictures of you drinking or partying surface on social media, and those are introduced in court, they might create the wrong impression. If you’re doing something illegal, or getting cozy with someone other than your spouse on camera, the impression could be even worse.
Part of the problem is that you are not the only one who can post pictures of you on social media. If someone else does, whether or not they tag you, your spouse may still be able to access the picture and use it against you. If you are tagged, you may be able to get the tag removed, but that won’t necessarily solve your problem. And because other people can post pictures of you on social media, even keeping your privacy settings locked down tight may not protect you. Your spouse may not be able to see your page, but he or she may still be “friends” with the coworker, cousin, or neighbor who posted the image.
It’s better to stay out of pictures altogether, or better yet, to stay out of situations in public that you wouldn’t want to be photographed in. Everyone has a cell phone these days, which means everyone has a camera and ready access to the internet.
It can be difficult to control what other people post that involves you. It is much easier to control what you put on social media, and you should. During a divorce, especially a contentious one, the temptation to say negative things about your estranged spouse can be very strong. This is especially true if your spouse’s misdeeds led to the demise of your marriage.
As hard as it is, resist this temptation, especially if you have kids. That is because custody is decided based on the best interests of the children. One of the factors is “the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child.” If you’re trashing the other parent online in a public or semi-public way, a judge might reasonably conclude that you say negative things to your child about their other parent—or at a minimum, that you have poor judgment and poor impulse control. If you must vent, do it to a therapist or trusted friend, in a way no one can take a screenshot of.
In a nutshell, there are a few things you can do to keep social media from causing a problem during your divorce. First, avoid social media use if you can, and avoid being in situations you wouldn’t want depicted or reported on social media. Don’t depict your financial situation one way in court documents and another way online (like by claiming you can’t afford to pay child support, then posting pictures of a lavish vacation). Don’t count on your privacy settings to protect you, and don’t say or do anything on social media that you wouldn’t want your divorce judge to see.
If you have further questions about whether social media can be used in a divorce, and how, we invite you to contact Fremstad Law to schedule a consultation.
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