Facebook. YouTube. Instagram. Twitter. These manufactured words have not only found their place in our everyday vocabulary, what they represent has completely transformed the social fabric of modern society. For all the good that these social media platforms bring to us, they are also a dangerous minefield that must be navigated carefully. This is especially true when in the midst of a divorce proceeding. An unguarded post, comment, or a carelessly uploaded photograph or video can upend everything you are trying to accomplish.

Can social media be used as evidence in a divorce proceeding?

Absolutely! Social networking evidence is becoming increasingly prominent in divorce cases. A recent survey found that more than 80% of divorce attorneys regularly present social media evidence in family court. It also revealed that a full two-thirds of divorce cases specifically feature Facebook accounts as a source of evidence.  

Think of how many marriages have been jeopardized by the revelations of extra-marital affairs on Facebook or Instagram. Much of social media is about public disclosure of what was once considered private details of life.  Whether or not those details are as sensational as an affair, however, over-using social media, in general, can deplete a marriage of its quality, which, in turn, can feed the desire for a divorce.

However, social media content can also readily be used to influence decisions downstream of the primary decision to divorce. For instance, if the father has a tendency to engage in angry tirades through his Facebook page, that will likely influence a judge to greatly limit his child custody rights since no one wants a child to be raised in a home dominated by anger.  Without the social media posts, it may have been much harder to show the father’s true demeanor.  Likewise, if the wife begins to flaunt her new jewelry or expensive vacations with her friends, a judge may see that as evidence that she does not have a great need for spousal support.

The reason for the increasing popularity of social media content as evidence is pretty obvious: it is easy to get. No search warrant is necessary to obtain from somebody what they so freely say or show in the public domain. Even if a person’s account privacy settings are set to their highest levels, all it takes is for an online “friend,” who has been granted rights to see what has been posted, to re-post that content on their own less-restricted page and thus make it public and discoverable. In short, courts have routinely found that there can be no reasonable expectation of privacy or privilege in the realm of social media.  Remember that many of your ‘friends’ in fact have shared allegiances with your spouse and you do not know which side they will pick if it comes to that. 

The key to using social media as evidence in a divorce proceeding is to ensure that the data is not obtained fraudulently. For example, false accounts with fake names cannot be created merely to “friend” a spouse’s account and thus get access to their data. In California, the admissibility of evidence from a social media investigation is also highly dependent on the demonstration of its authenticity. It is not enough to merely show the content of a post on your spouse’s Facebook page; you must also show that your spouse actually produced that post. Additionally, you must ensure that what you submit to the court is an accurate representation of the original. These requirements are not as difficult to meet as they sound. Usually, the only necessary thing is witness testimony from those familiar with the creation or subject of the post, or from others who received the post. Sometimes, it may be necessary to trace the IP address of the device used to create the post and then link that device to the spouse. 

The bottom line is this: Social media plays a major role in modern divorce proceedings, and therefore, it is paramount that you learn to use it wisely if you have ongoing involvement with the courts.

What are the best practices for using social media during a divorce?

Truthfully, the best thing to do is to avoid posting on social media altogether until your divorce is finalized. It is too easy to say something or show something that will be regretted later as it impacts a judge’s decisions against you. However, for many people, their Facebook accounts and other social media outlets occupy significant places in their relational interactions. So, if you plan to continue using social media during your divorce, make sure you take these extra precautions:

Change accounts. Create a new profile for yourself using a new email address and, if possible, different contact details. Set its privacy settings to the highest levels. Accept “friend requests” only from those you trust the most, most likely just your family and true closest friends. Don’t allow yourself to be tagged in other people’s posts. As you establish your new account, DO NOT DELETE your old account(s). That  would likely be considered to be spoliation (destruction) of evidence and would be illegal. Your old posts, emails, text or direct messages, uploaded photos and videos must remain in existence, though they need not be readily available.  

Be discreet. Remember that everything you “put out there” is fair game to be used against you – and likely will be. Therefore, avoid writing anything or uploading photos or videos that would put your reputation in a negative light. Don’t vent everything you think or feel, and don’t flaunt any new possessions or positions you may obtain. And, certainly, do not litigate your divorce on social media, either. Do not seek information against your spouse or say negative things about them. Do not defame their attorney or disparage the divorce process (especially the judge!). And do not write or upload anything that shows you engaging in any illegal or immoral activity. This includes so-called “spite porn”; not only could releasing intimate images of your spouse land you in legal hot water, but it will also impact the outcome of your divorce.

We are here to help.

Navigating the minefield of social media is going to be crucial in successfully litigating your divorce proceeding. Not only must you guard yourself, but you also need to know how to glean relevant information from your spouse. At Silva & Associates, we know both the possibilities of and the limitations of social media evidence in divorce cases. We can help you discover what you need to support your case. We can also help you develop a wise strategy that protects you as you engage in social networking. Reach out to us today, and let us put our experience to work for you.