Managing Social Media During Your Divorce

Posted on Mar 6, 2020 by Katie Carter

We all have social media accounts. Or, at least, virtually all of us do. And, for many of us, it’s an integral part of every day life. For me, as a millennial, I barely remember a time before computers, and, even though I remember getting my Facebook account (back when Facebook was limited to students at colleges and universities with an email account), it’s also normal to me to share information about my life with my “friends” list.

I personally keep the posting – especially about my kids – to a minimum, but I find it normal to announce new jobs, engagements, weddings, babies, promotions, etc. It’s not at all uncommon to see 75 of my friends post (with pictures) for holidays or other special events. I know many of my friends spouses and children by sight, not because I actually know them, but because I’ve seen them in my newsfeed for so many years.

And Facebook is only one of those avenues for sharing information. There are a bunch of other social media sites, all encouraging all of us to share the highlights of our lives with (in some cases) virtual strangers. Anyway, all that to say – I understand, I don’t mind sharing, and I completely understand the compulsion to do so. No judgment here.

…Unless you’ve got a divorce or custody case going on (or you might soon). In that case, it’s a little risky, and you need to be careful what you post online for all the world (including your husband and his attorney and whoever else) to see.

What’s the big deal? If a post is a problem, I’ll just take it down.

A lot of people seem to think that whatever is posted on social media is easily erased, but that’s not actually the case.
If someone has already seen your post, and has either taken a screenshot or saved the url, they can find it later. Facebook (and other social media sites) own the content posted on their pages, and they index and save that information. Not to mention what a jealous or angry ex can do!

Besides, there’s a whole “spoliation of evidence” issue. You might be thinking, “What? Talk English please!” and I completely understand. So, when a case is pending, evidence needs to be preserved. If you go around destroying evidence (and that can include deleting pages or posts on social media), you can be in trouble with the court.

It doesn’t matter that it was your post to begin with; once you shared it, it became part of the chain of evidence, and you can’t delete it.

If I can’t delete my post, can I delete my social media account?

No, you run into the same issues. Whether you’re talking about deleting a simple post or deleting an entire account, you have a spoliation of evidence issue. Once you know there’s a case on, you have to preserve the record – or you risk getting in trouble with the judge.

The only thing you can do is deactivate your account; that is, make it inactive. You can activate it again at any time, but it won’t be searchable for opposing counsel or your husband in the meantime. That’ll often work, especially if they don’t already have reason to believe that you’re using your social media account to post or share or chat inappropriately.

What CAN I share on my account? I wish I could, but I just can’t deactivate!

If you’re addicted to social media, I understand. I really do. I love it, too, even though I try to keep my own personal posts to a minimum. I’m not really sure what I’d do when I waited in doctor’s offices or for preschool pick up if I didn’t have Facebook installed on my phone, and I still use it to chat with some of my law school besties!

Still, you need to be careful what you post – what you do – and with whom you chat on social media. It’s discoverable (meaning that opposing counsel can request these records in discovery, if there’s reason to believe it’ll lead to admissible evidence), so it’s particularly dangerous.

If you’re having an affair, for example, it’s a really bad idea to be friends with your new boyfriend, to include a picture of the two of you, to have explicit chats with your Facebook account, or share status updates that lead people to believe you’re a couple. Admitting you’re pregnant, for example? It should go without saying, but that’s a big no-no, especially if you’re hoping to get spousal support.
Look, I get it – marriages are often over for long before there’s a final decree even submitted to the court, let alone before there’s dry ink on it! People move on, and I don’t really think there’s any right or wrong way to find happiness, so long as you’re being safe and making good choices for your (and your children’s) well being. But, still – let’s not just hand opposing counsel evidence that will make your life extremely difficult.

If yours is a custody case, on the other hand, it’s not a good idea to share pictures of you out clubbing or doing things that would make anyone think that you’re anything other than the world’s most perfect mother ever. The court is old fashioned and sometimes narrow minded; really, all of us can be prone to snap judgments at times. So you’ll want to be very, very careful what you post and what kind of image it projects. Even if that’s unfair, or sexist, or a dual standard that’s not equally applied to men.

Basically, anything that suggests that you are anything other than a dutiful and loving wife and mother should be excluded. Why? Because it’s not worth the headache it may create later.

Be very, very careful with social media. When in doubt? Just don’t post, share, snap or tweet. Okay? Still have questions? We have a free report on social media and the dangers it poses in divorce and custody cases, which you can request here.

For more information or to schedule a consultation with our licensed and experienced Virginia divorce and custody attorneys, give our office a call at 757-425-5200.