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The Social Media Do’s and Don’ts in Divorce and Custody Cases

Sharing information on social media is fun.  Hearing from our friends and family and seeing their photo updates is a highlight of the day for most of us.  Posting our own updates and pictures is nice too.  When things are going well, we love to share the love.  But when things are not going well, we are tempted to vent publicly about it.

This venting can seem harmless but if you are going through a divorce or custody battle, your words or pictures could come back to haunt you.  You may feel that your strict privacy settings will provide a buffer from this threat.  Unfortunately, even if you have stringent privacy guidelines in place, your social media activity is not private in divorce and custody cases.  It is considered “discoverable” information.  “Discoverable” information is any information relevant to the current lawsuit.  Just like texts and emails, you will likely have to give the other side a copy of your social media activity – possibly going back years.

How Can Your Social Media Be Used in Court?

Your social media posts, pictures, and “private” messages can be used in court to:

  • Show what you were doing on a certain day and time;
  • Show who you were with on a certain day and time;
  • Show your state of mind;
  • Show the nature and extent of your relationship with someone of interest (such as a paramour);
  • Show proof of income; and
  • Show what you have said in the past about relevant topics (including the other party, your children and other people involved in the case).

Social media posts and conversations are extremely useful in divorce and custody cases.  Attorneys use the other side’s social media all the time in court to prove a parent should not have custody of the children, to catch the other party in a lie or to prove an affair.

So if you are facing divorce or a custody battle, what should you do with your social media?  Below is a list of Do’s and Don’ts we highly recommend:

Social Media Do’s:

Take a Break:

We encourage our clients to take a break from social media.  Deactivate your accounts if at all possible but do not delete your previous activity.  Activity on social media tends to add an extra layer of conflict and complexity to family law cases.  It is best to take a break while we help you resolve your issue.

Change Your Password:

Make sure to change your password to all of your accounts as soon as possible.  A common issue our clients face is the other party’s use of a password to break into an account and wreck havoc.  Even if you do not believe he or she has your passwords, change them anyway just to be sure.

Change Your Privacy Settings:

Even if you take a break from social media, make sure your privacy settings are as strict as possible.  While this will not stop the Court from potentially seeing the information you have shared, it can stop prying third-party eyes from seeing what you have shared.

Delete Fake Friends and Drama Queens:

Speaking of prying third-party eyes, be sure to review your friends list and delete fake friends and drama queens.  Anyone who starts trouble simply for the sake of starting trouble should be removed.  Third-party comments and arguments on social media are the source of extra issues and conflict in divorce and custody cases.  You are already going through a lot.  If you can remove any potential offenders, it will save you some extra headache and heartache.

Agree to Social Media Terms:

For custody cases, if you and the other parent can settle the issue outside of court, you can agree to social media terms in your parenting agreement or consent custody order.  For instance, you can agree on the types of updates you can post about the children, if pictures of the children should be posted to social media, etc.  You can also agree on the amount of access the children will have to social media and computers in general.  Will the children be allowed to have their own social media accounts?  How will they be monitored?  These are all questions you can address together as co-parents in an agreement.

Follow People Who Encourage You:

It seems like Facebook is always filled with negativity.  If you do not want to de-friend someone who only posts things that bring you down, consider un-following them.  Moreover, find some people on Facebook and other social media who inspire, encourage you and lift your spirits.  Being able to lean on an encouraging word to get you through the day may seem like a small feat but it has a tremendous impact on your quality of life.

Social Media Don’ts:

Do Not Snoop:

Social media makes it so easy to check in on other people.  One click and down the rabbit hole you go.  Thirty minutes later you have found out all you ever cared to know about someone.  It starts out very innocent.  Maybe your ex is not communicating with you and you want to find out what he or she is doing.  But it can lead to some real spying, like breaking into the other person’s accounts.  This can land you in a great deal of trouble.

Beyond that though, viewing the other person’s activity only ends up making you feel bad.  Most of the time it fuels resentment and conflict.  It is in both of your best interests to reduce the amount of conflict that is already there.  On a personal level, it is in your best interest to reduce any negative feelings.  You are already going through a lot emotionally, there is no need to voluntarily subject yourself to more strife if you do not have to.

Do Not Delete Your Previous Activity:

While we encourage you to take a break from posting to social media, we cannot encourage you to delete your previous activity.  If you are anticipating litigation and your previous posts may be relevant to the subject matter of the litigation (such as custody), you may face penalties for deleting the relevant activity.

Do Not Post About Your Kids or Your Life:

This may sound harsh but remember how we said you should take a break from social media?  If you do not want to deactivate your account completely, you should avoid posting the following:

Your Children: Feel free to continue posting about their activities and achievements.  However, try to stay away from publicly discussing how hard the divorce or custody battle has been on them or you.

Anything Fun: It is extremely tempting to post updates during a “free” weekend while the children are away.  However, try not to post status updates or pictures related to any parties, nights on the town or drugs and alcohol.  Even innocent posts can be misconstrued in a custody trial.  We have seen one parent falsely accuse the other of being a drunk and “party animal” instead of a responsible parent.  Unfortunately, several facebook updates lent credibility to their story.  Because of that, it was harder work than it should have been to combat their false narrative.

Likewise, if child support or spousal support are at issue, do not update your status or post pictures of any newly purchased items.  These can be used to prove income.

Humblebrags: We have all posted something to social media for the whole world to see but with the intent of directing it at one person in particular. Sure, it’s petty but it makes us feel good.  Maybe it’s to show him or her how good life is without them.  Maybe it’s to show him or her you are not broken or defeated.  Whatever the reason, these posts can lead to trouble.  While they may or may not affect your case in court, they are often the kindling for meddling “friends” who like to start drama.  For that reason, these types of posts usually only serve to increase animosity between you and your ex and it is best to avoid them.

Social media is having a greater and greater impact on the outcome of family law cases.  If you have questions about your social media activity or someone else’s, contact our office today.

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