Recently, the American Academy of Matrimonial Lawyers stated that 81% of the attorneys surveyed have used social media evidence in court proceedings. That is a large percentage of cases where social media has been presented as evidence of affairs, drug use, alcohol abuse, neglect, and other issues. We are now a society that takes pictures of everything and publishes our lives for all to see. So it should not be a surprise when this is used in a divorce. Does this mean that if you are getting divorced that you need to delete all of your Facebook posts and go off the grid? No. The reality is that if you delete posts they may be able to be recovered from the social media platform, your spouse may have already printed or copied your posts and it appears you have something to hide if you are deleting all of your posts. So, what should you do? Be smart!
You should not post anything online that you do not want anyone to know or use against you. This is true if you are going through a divorce or not. Employers, schools, potential mates, everyone checks online when they meet you. By thinking before you post, you are protecting yourself from potential problems.
Set your privacy settings to limit who can see your content. Facebook and other providers allow you to limit who can and who cannot see your posts. You may also want to consider “unfriending” or blocking your spouse from looking at your posts.
Do not engage in a war with your soon-to-be-ex (or their friends, family) online. While you may win the battle, you will likely lose the war. It is not uncommon for a spouse or partner to introduce into evidence long strings of posts or messaging with their ex. Tone is hard to interpret from words on a page. Something that may have seen funny at the time may be misinterpreted. You may say something in anger which you did not mean that is now memorialized forever. A good rule of thumb is act as if it will be used against you in court because it probably will.
Ask your friends not to post things about you without you knowing. As a lawyer, I have had clients bring in posts of their ex that they found on a friends’ social media posts. Your friends may not mean to out you as having a new partner or think that posting a picture of you having some drinks at a party is going to cause a problem with your parenting time, but their posts can cause you problems. Just ask them politely to refrain from putting pictures up of you until your family matter is resolved. It can save you some headaches in the future. With social media, it comes down to common sense. If you are engaging in behavior that you do not want your ex (or his/her attorney) to know about, do not put it up on a public platform. You do not want your spouse coming into court with embarrassing pictures to show the judge.