Protecting Yourself on Social Media During a Divorce or Custody Case

Posted on Jan 15, 2016 by Katie Carter

In all kinds of cases these days, Facebook is an issue, and divorce and custody cases are no exception. Though most of us have readily accepted social media as a constant presence in our lives, as an attorney I have to cringe a little whenever I think of what my clients are doing online.
It’s more complicated than you might think, too. Though you can easily add and take away things you’ve posted, the things you post (whether status updates or pictures or links to outside pages) never really disappear. If TimeHop has taught us only one thing, it’s that Facebook is archiving and storing away even the most mundane and uninteresting details of our lives from years ago. Just this morning, in fact, I logged in to my own personal Facebook and saw “memories” from seven and eight years ago—including two posts from old ex boyfriends.
Hmm. Considering that I had practically forgotten that these people existed (or is it just that I prefer to pretend that they don’t exist?), it was a bit awkward and off putting to have this in my face reminder of relationships past. (Two, in fact! And before 8am!)
It’s a good reminder to me (and, hopefully, to all of you) that what we post (or what other people post to our walls or profiles or whatever) never really goes away. It’s stored, magically, in cyberspace. Maybe you’ll never look at it again. Maybe you will, and it’ll cause you to smile and nostalgically remember your youth. Maybe, like me, you’ll see it and cringe a little. Or roll your eyes. Maybe, on the other hand, you’ll see it—and it will (quite literally) come back to haunt you.
I don’t say this to alarm you, but just to give you an idea of how important it is to carefully govern the things you post and the way you behave on social media sites. And Facebook isn’t the only site, of course—it’s Twitter, Instagram, SnapChat, Vimeo, and all the other social media sites that exist these days. What you post is, more or less, permanent. It doesn’t go away, especially not if it’s embarrassing, incriminating, or inconvenient. These things tend to pop back up, and you should be aware.
To post or not to post? It’s unrealistic to suggest that people in this day and age wouldn’t have social media accounts. I know I do! I’m on Facebook, Twitter (though inconsistently), Google Plus (because I have to be), LinkedIn, Avvo—and probably a couple of others that I haven’t thought of right off the bat. Back in the day, I even had MySpace. (Am I aging myself now?) Still, you should probably plan to exercise a little discretion before you post. Think: What am I saying? What does it say about me? Does it put me in a positive or a negative light? Could it be construed in a way that might hurt me later? Is it necessary, interesting, or helpful?
I’m not trying to be anyone’s mother, or encourage you to only post “nice” things. I think there’s definitely room in the social media environment to post critical pieces or even to have a spirited discussion on a particular topic, if that kind of thing appeals to you. But if you’re going through a divorce or custody case, or if you’re preparing to go through one, or if one is potentially even looming on the distant horizon, you should tread carefully. In fact, we should ALL tread carefully, but that’s a little beyond the scope of this article.

Why do I have to worry so much about what I post? I can just delete it later anyway.

Though it’s true that you CAN delete things that you post, and you can certainly delete your account. If you’ve already got some kind of case pending, though, neither of those options is a very good idea.
The issue is what lawyers call “spoliation of evidence.” What’s that? Well, I’m no good at coming up with my own definitions, so I’ll refer to Wikipedia. Spoliation of evidence is “the intentional, reckless, or negligent withholding, hiding, altering, fabricating, or destroying of evidence relevant to a legal proceeding.”
So, basically, once there’s any kind of case, you could be in trouble if you get rid of evidence that would help the judge make a determination on your case. These days, because of the prevalence of social media, the information you post online is included in evidence that could be gathered for trial. If it’s relevant, you can’t delete it—or even delete your profile.
Besides that, you can’t really delete it anyway. It’s all saved somewhere, and it would be discoverable—especially if the other side already knows it exists.
Have you ever tested that before? Try it. Post a picture on Facebook—something inconsequential or boring or even a picture you took with your finger over the camera lens. (Something, in short, that could never amount to anything.) Post it, and then copy the URL. Delete the picture, and then re-enter the URL. Your picture will still show up. That’s because, even though you delete it from your page, it’s not actually gone. It exists, permanently, in cyberspace. Of course, once it’s deleted, it’s much harder to find. Someone who came to your page, for example, and just started searching through your pictures wouldn’t be able to find it. When you delete it, you do delete it from your page—which significantly lessens the likelihood that someone will be able to find it. Still, if you delete something they already know about (especially if they have already saved the URL of your post), you won’t be able to stop them from using it against you later.
If the court finds that you’ve deleted something that would have aided in the investigation, you could face significant criminal and civil penalties. A risk, frankly, that you don’t want to take. So, think before you post, and, when in doubt, don’t post at all.
You can deactivate your account temporarily (rather than deleting it) if you want, but make sure that you preserve your page’s integrity, just in case. Deleting is different, and you shouldn’t delete anything without talking to your attorney about it first.

Okay, I get it. I can’t delete anything, and I should be careful about what I post on social media sites, especially when there’s any kind of legal action pending. What other rules of thumb should I follow so I don’t get in trouble on social media?

A great question! It may seem like common sense, but there are definitely some good rules of thumb to follow if you’re facing, preparing to face, or even expecting to face any kind of legal action. You really can never be too careful, especially when there’s so much at stake in a divorce or custody case.

1. Change your privacy settings!

Not everyone in the universe should be able to see everything you post on Facebook. This isn’t going to protect you from every possible scenario, of course, but preventing everyone and their third grade teacher from seeing everything you post can go a long way towards protecting your privacy.
Of course, I also use the term “privacy” very loosely. Let me be perfectly clear: Facebook, Twitter, Instagram, Vimeo, Pinterest, and SnapChat are NOT private. When you post things, you are (obviously, I think) sharing information with a wide audience. You aren’t intending to post things there so that only you can see them. If that was your intention, I certainly hope you wouldn’t post it online at all; your diary is much, much safer (though arguably less user friendly). You’ll have a hard time making an argument in court that you had any reasonable kind of expectation of privacy. Why? Because social media is, by its very nature, not private at all. The whole point is to share.
Protect your privacy (again, I’m using that term loosely) by adjusting your privacy settings. You can control who sees what posts, and how far out it extends. Does it show to everyone, or only your friends? Can friends of your friends see it? Do you have anyone blocked? (People who you block can’t see your profile at all.)
By taking steps to control what goes on your page, you can protect your page. It’s not perfect, but it’s better than nothing.

2. Don’t use Facebook messenger (or equivalent) to message opposing counsel OR your husband or child’s father.

Just. Don’t.
Facebook messenger is a great tool, but you shouldn’t be using it to message opposing counsel. While you have a case pending, let your attorneys handle communication between the two of you. It’s just safer that way.

3. Don’t “like” or comment on statuses or posts on Facebook by your husband or opposing counsel.

Again, sort of obvious. But, whenever you like a status or a page, you give the person (or company) you liked access to your page. You certainly make them stand up and take notice of you. In a legal proceeding, you don’t want to do that. You especially don’t want to do that if yours is a custody case and your profile picture is a picture of you taking a beer bong upside down while a group of your half-dressed friends cheer you on.

Okay, so that’s a bad example, because it’s obviously really not good for your custody case if you’re pictured that way. But what about one of you where you’re holding a glass of wine? Probably totally normal, but do you really want opposing counsel telling the judge that you’re a lush? A party animal? That you’re not fit to have custody of your kids?

Would that be a good argument, based on one picture of you with a glass of wine? Probably not. But do you want to hand that kind of evidence over to the other side? Definitely not! Do you want that kind of stress in your life? I know I don’t! So, moral of the story: (1) watch what you post, and (2) don’t like or comment on statuses or posts or tweets or pictures your husband or opposing counsel post.

4. Monitor your friend’s activity.

Part of the problem with social media is that you don’t always have a lot of control over what other people post of you.
Still, if you’re in the middle of a divorce or custody case, it’s best to be open and honest with your friends. Ask them not to post anything without your approval and, if they won’t agree (or do post things without your permission), refuse to take pictures with them.
It’s not fun, but you need to do what you need to do to manage your own social media sites. Make sure you’re paying attention to what is being posted about you or on your page, and talk to your friends to make sure they understand. A good friend will do her best to make sure that you’re portrayed in the best possible light.

You can keep your social media sites AND protect your case. Follow these tips and you’ll be well on your way. For more information or to schedule an appointment with one of our licensed and experienced divorce and custody lawyers, give our office a call at (757) 425-5200.