Think Before You Post: Protecting Your Divorce Case from Social Media Pitfalls
In today’s connected world, sharing our lives on social media is second nature. However, when you are navigating a divorce, your online activity transforms from a personal diary into a public record—one that can be scrutinized in a court of law. Every post, photo, and comment has the potential to be used in court and impact critical outcomes, including child custody, spousal support, and the division of assets.
At H&H Law, we advise clients to be exceptionally mindful of their digital footprint. Here are key strategies for managing your social media presence during a divorce.
Your Posts Are Discoverable Evidence
The most important thing to understand is that anything you post online can be considered evidence and your own statements. Opposing counsel can and will use social media content to build a case against you.
- Financial Disclosures: Posts celebrating a job promotion, hiking a 14er, showing off an expensive purchase, or depicting a lavish vacation can be used to challenge claims of financial need or inability to pay support or to work.
- Parental Fitness: Photos or posts that involve excessive partying, irresponsible behavior, or disparaging remarks about your co-parent can be presented to question your judgment and fitness as a parent in custody disputes.
- “Private” Is Not a Guarantee: Even accounts set to “private” are not secure. A “friend” can take a screenshot, or your spouse’s attorney can issue a subpoena to the social media company for your records. Assume anything you post will be seen by the judge and when in doubt do not post.
The Peril of Deleting Content
When you realize a past post could be problematic, the instinct may be to delete it. Resist this urge. Intentionally deleting social media posts, messages, or entire profiles after a divorce has been initiated can be viewed by the court as the destruction or spoliation of evidence. This can lead to serious legal sanctions, including fines or unfavorable rulings against you. The far better strategy is to cease posting potentially harmful content from the outset and to inform your attorney of what does exist.
Maintain a Professional and Positive Demeanor
While it is tempting to vent your frustrations online, doing so will almost certainly backfire. Publicly criticizing your spouse can be interpreted by the court as a sign of instability, immaturity, or an unwillingness to foster a healthy co-parenting relationship. This is not just limited to narrative posts but memes and GIFs also can convey strong and unfavorable messages.
Instead of airing grievances, focus on maintaining a composed and respectful online presence. A judge is more likely to view you as a reasonable and cooperative party, which is particularly crucial in matters involving children.
Recommendations for Navigating Social Media During your Divorce
Given the risks, we provide clients with the following actionable advice:
- Consider a “Digital Blackout”: The safest approach is to temporarily deactivate your social media accounts until the divorce is finalized. This eliminates any risk of posting something detrimental to your case.
- Conduct a Privacy Audit: If you choose to remain online, immediately review and tighten your privacy settings on all platforms. Limit who can see your posts, view your friends list, and tag you in photos.
- Think Like a Lawyer: Before you post anything, ask yourself: “How could opposing counsel twist this against me?” If there is any doubt, do not post it.
Inform Friends and Family: Politely ask your close circle to refrain from posting photos of you or mentioning your divorce or ex on their own social media profiles.