We rely on social media more than ever, but it poses a real risk during divorce.
Social media and other electronic communications have become a daily part of our existence. Text messages, emails, Facebook, Twitter and Instagram are all popular ways of communicating what is going on in our lives. Increasingly, these communications are becoming a factor in divorce proceedings and information that either you or your spouse may post through any of these means can be used as evidence. The following list outlines a few basic “dos and don’ts” to keep in mind.
Do: Adjust your privacy settings. Keeping your profile public allows your spouse’s friends, co-workers, or even his or her attorney to access your profile and obtain information and pictures that can be used as evidence in your divorce proceeding. On Facebook, for example, you can restrict who sees your posts and keep others from tagging you in photos. That said, never rely on privacy settings to shield a potentially damaging post from someone eager to dig up dirt—follow the advice below, first.
DON’T: Discuss your legal proceedings via social media. Divorce is an emotional process and it’s understandable to want to discuss that with your friends or family members. Save those conversations for the phone or in-person to avoid posting anything that could reflect negatively on you or could reveal confidential information about your legal proceeding.
DO: Cool down before responding to your spouse or consult your attorney about an appropriate response. With text messaging and email so readily available on our phones, a reply can be sent almost instantaneously. However, those instant reactions to an email or text message from your spouse are often emotional and may contain language or sentiments that, when presented to a court or custody evaluator, may damage your case.
Unless the issue is an emergency and must be dealt with immediately, take some time to craft your response to ensure that it projects your best self. If you are really unsure of how to respond to a text message or email from your spouse, contact your attorney. They can help determine an appropriate response or intervene if the issue is one that is best left to attorneys.
DON’T: Post anything on social media that you would not want the judge to see. The use of social media in divorce cases means that anything you post on your page, could wind up in front of the judge during a motion hearing or at trial. If you would be embarrassed or reluctant to show pictures or other posts to the judge, or if anything on your social media accounts contradicts the information you have provided the court in legal documents, you should definitely not post those things anywhere on social media.
No matter how restrictive your privacy settings are, you and your spouse may have mutual friends who can take the images posted on your social media account and provide them to your spouse. Also, make sure that your friends do not tag you in “questionable” photos or posts that could ultimately be used against you in your legal proceeding.
DO: Stop “checking in” on social media websites—particularly if there has been domestic violence or other safety concerns in your marriage relationship. You do not want to alert your spouse to where you are. Similarly, do not allow friends or others you are with to tag you in their “check in”—often, privacy settings allow you to limit who can tag you. This can help you maintain both your safety and your privacy during the divorce proceeding.
DON’T: Forget to provide your attorney with any information from your spouse’s electronic communications or social media account that could be beneficial to your case. Sometimes clients are unsure about the admissibility of electronic evidence or are not sure whether the information is relevant. When in doubt, provide your attorney a copy of the information and let them determine the relevance and/or admissibility of information. It’s always best to print a copy of the information or save it to a reliable location right away, in the event that your spouse changes their privacy settings or deactivates their social media accounts.
One tech tip: most devices have a way to take a screenshot. On a Windows computer, press Windows + Shift + S. On a Mac, press Command + Shift + 4. On an Android device, take a screen capture by pressing the physical Volume Down and Power buttons at the same time. On an iOS device, press the Power and Home buttons at the same time.
The only guaranteed way to ensure that social media or other electronic communication is not used against you in your divorce proceeding is to avoid these types of communication altogether. While stopping text message or email communications may not be practical, it is possible to limit those communications.
Social media accounts can be deactivated during the pendency of a divorce proceeding and then reactivated after your divorce is final. If you choose to continue to use social media and other electronic communications, use the tips above to provide some guidance to help minimize the accessibility and the potentially damaging effects of social media and electronic communications.