How do I manage social media during my divorce and custody case?

Posted on Jan 12, 2022 by Katie Carter


I’ve written about social media accounts before, but it seems like the landscape is constantly changing. With the advent of so many different platforms for sharing, we’re dealing with new issues all the time – and with clients who think less of sharing a LOT of themselves in very public platforms.

I’m not one for dictating a standard of morality or decency; I think it’s entirely too subjective. I also think, though, that sharing too much on social media platforms is dangerous in cases where there’s ongoing litigation especially, because it’s not about my standard of morality or decency (or yours), it’s about what a particular judge feels about it on a particular day.

That’s what makes it so hard. You’re just going along, sharing what you think is funny or cool or interesting, and then suddenly you find yourself in the middle of a litigated case with people trying to make your posts mean something that they don’t necessarily actually mean. Or maybe they do mean that, but actually deriving meaning or intention on social media can be challenging – it’s complicated, as I’m sure you, as a fellow social media user, are completely aware.

We share a lot. We share our kids, too – or, at least, a lot of us do. That’s another potential bone of contention that a judge could find with you.

So, how do you manage your social media accounts – you know and I know you’ve got some – during your divorce or custody case?

Hey, I get it – I’m on social media, too. I try to be super careful about what I share, but maybe that’s because I’m a little extra jaded from all of these crazy cases!

In general, though, I think it’s great that you’re asking this question. It’s going to put you miles ahead of anyone who just doesn’t ask the question or who doesn’t care enough to modify her behavior while her case is pending.

Basically, anything that you put out into the world is ammunition that could add fuel to a fire. Anything that you decide not to post, well, just isn’t. Because nothing means nothing; but a post that says something could, potentially, have consequences.

Should I just delete my social media accounts then?

No! Absolutely not. In fact, that’s a really bad idea, especially if you’re only considering doing it because of some pending litigation. Technically, that could get you in trouble for something called ‘spoliation of evidence’. If there’s anything on your page that could be relevant to your case, you could be in trouble for deleting the page.

A better course of action would be to deactivate it, or to keep it open but to stop sharing content on your page. It’s tempting to think that you might just share innocuous content, but in some cases I find that client’s judgment about what constitutes ‘innocuous content’ is not the same as mine. No one has time to ask their attorney about every single post before they post it, so, as a general rule, I’d suggest just not posting if you’re in any doubt at all.

Deleting could also be a costly mistake to make as well.

Does that mean I can’t post anything on any social media platform?

No. I mean, I’m not your mother. I’m not here to establish rules, just to make you aware of potential issues.

The problem is that anything you share is discoverable, on any platform – Facebook, LinkedIn, Instagram, SnapChat, TikTok, whatever – so, if you do choose to share, your husband or child’s father’s attorney could get ahold of it.

It wouldn’t be a stretch to say that, often, whatever you’ve shared might sound or feel really weird if it’s read aloud or played on screen in court at your hearing. Taken out of context, these things can take on a life of their own and can make things really awkward or uncomfortable.

You need to remember, too, that it’s all a question of taste. Yours is probably different from mine which is different from opposing counsel’s which is different from the guardian ad litem’s which is different from the judge’s. There are often a lot of people involved, and if someone can find something questionable – well, it’s a concern.

In an ideal world, you work together with your attorney to put yourself in the best possible position to be successful. Does that mean not sharing anything on any social media platform? Maybe, but not necessarily.

You should consider what your posts are saying about you to people who don’t have the same values as you. What criticisms could they draw from the pictures? It’s not necessarily the obvious criticism we think of when we think of women – basically, that somehow she’s a bad mom or she’s promiscuous – but whatever ANY naysayers might think. It’s hard to think of all the ways someone could find fault with what you’re saying and, in general, I’d say it’s not an entirely healthy way to think. After all, we can’t live our life concerned about criticisms from near strangers, right? You YOLO and all that. Right?

Except – not. Or, at least, not when you have a pending divorce and/or custody case. And, when it comes to custody, it also bears mentioning that it’s modifiable based on a material change in circumstances, so chances are good that if you found yourself litigating once, well, it could easily happen again.
For more information about social media or how to manage your accounts, or to schedule a consultation to discuss your options, give our office a call at 757-425-5200.